THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 


A  TREATISE 


ON 


EQUITY  PLEADING 


AND 


PRACTICE 


BY 

PHILIP  T.  VAN"  ZILE 

OF    THE    DETROIT    BAR 

Author  of  Bailments  and  Carriers 


CHICAGO 

CALLAGHAN  AND  COMPANY 

1904 


T 

1904. 


Copyright,  1904, 

BY 

PHILIP  T.  VAN  ZILE 


STATE  JOURNAL  PRINTING  COMPANY, 

Printers  amd  Sterkotypers, 

madison,  wis. 


PREFACE. 

In  the  preparation  of  this  work  it  has  been  the  aim  of  the 
writer  to  present  the  theory,  principles,  and  system  of  eqmty 
pleading  and  practice  in  a  plain,  simple,  and  methodical  man- 
ner  stripped  of  all  technical  phrase  and  language,  noticing  here 
and  there  the  history  of  the  subject  and  the  many  interven- 
tions, the  result  of  modern  ideas,  necessary  to  meet  the  de- 
mands of  the  enlarged  and  progressive  business  of  the  times. 
To  this  end  the  origin,  jurisdiction,  and  development  of  the 
court  of  chancery  has  been  briefly  noticed  in  the  first  chapter 
of  the  work,  that  the  reader  might  better  understand  and  apply 
the  discussion  of  the  subject  in  the  chapters  following. 

The  yesterdays  in  the  history  of  equitable  jurisdiction  and 
procedure  are  replete  with  endeavor  to  produce  a  clear  and 
comprehensive  system,- a  system  sufficient  to  meet  the  de- 
mands  of  justice  and  the  equitable  determination  of  the  prob- 
lems that  were  constantly  being  presented  for  solution  in  the 
business  world;  and  the  to-days  are  reaping  the  satisfactory 
results  of  those  endeavors;  for  this  court,  anchored  as  it  is  in 
the  consciences  of  men,  limited  and  directed  by  the  settled 
rules  of  the  law,  has  become  indispensable  to  the  welfare  and 
business  interests  of  mankind. 

Because  of  the  necessity  of  keeping  pace  with  the  demands 
of  the  times,  equity  pleading  and  practice  in  this  country  and 
in  England  has  been  subjected  to  many  changes.  The  equity 
court  with  its  more  or  less  modernized  practice  differs  m  many 
respects  from  the  early  English  court  of  chancery.  While 
many,  and  perhaps  most,  of  the  principles  governing  the  prac- 
tice  have  been  retained,  following  the  trend  of  business  in 


IV 


PEEFACE. 


these  latter  days  some  of  the  early  rules  of  practice  which  so 
unreasonably  delayed  the  course  of  the  equity  cause  have  given 
way  to  more  expeditious  practice  and  procedure. 

Among  the  interesting  changes  noticed  which  are  of  inter- 
est to  the  studentrpractitioner  are  those  which  have  simplified 
and  made  more  practical  the  equity  bill,  allowing  unnecessary 
allegations  and  verbiage  to  be  omitted;  the  chancery  subpoena, 
particularly  its  service  and  the  bringing  of  the  defendant  into 
court  to  answer  the  bill;  the  changes  which  finally  resulted  in 
allowing  a  decree  pro  confesso  to  be  taken  without  the  presence 
of  the  defendant  and  for  his  failure  to  appear  and  answer;  also 
many  changes  in  the  form  and  use  of  other  pleadings  in  the 
equity  cause. 

The  transition  wrought  in  the  manner  of  producing  the 
proofs  and  the  hearing  of  the  cause  has  perhaps  been  more 
marked  and  interesting  than  any  other.  The  State  courts  have 
more  generally  answered  the  demands  of  an  advancing  age  in 
this  particular.  The  early  method  of  producing  the  proofs  in 
the  chancery  cause,  so  impracticable  and  unsatisfactory,  has 
gradually  given  way  to  a  mere  advanced  and  practical  system, 
and  to-day,  in  these  courts,  proofs  are  usually  taken  at  the 
hearing  before  the  chancellor  and  in  open  court,  where  the 
witnesses  may  be  seen  and  heard,  and  thus  the  chancellor  be 
better  enabled  to  arrive  at  a  decree  from  all  the  evidence  ad- 
duced in  the  cause. 

The  Federal  courts,  however,  have  been  slow  to  adopt  these 
changes,  and  in  the  matter  of  taking  the  proofs  and  hearing 
the  cause  still  cling  to  the  old  and  outgrown  practice  of  tak- 
ing proofs  before  a  master  in  chancery,  allowing  solicitors  to 
appear  and  examine  the  witnesses,  and  the  master  to  take  the 
testimony  in  writing  and  report  it  to  the  court,  to  be  read  at 
the  hearing. 

To  this  particular  practice  in  the  Federal  courts  some  criti- 
cism has  been  offered,  and  the  hope  is  entertained  that  by 


PEEFAOE. 


cono-ressional  enactment  and  revision  of  rules  a  new  and  better 
system  will  be  inaugurated  which  will  at  least  render  it  possible 
for  the  litigant  of  ordinary  means  to  obtain  a  hearing  of  his 
cause  in  the  appellate  court. 

The  plan  of  the  present  work  has  been  to  pursue  the  practice 
and  procedure  in  an  ordinary  equity  cause  from  the  filing  of 
the  bill  to  the  final  decree,  noticing,  as  occasion  seemed  to  sug- 
gest, the  motions,  petitions,  interlocutory  orders  and  decrees 
as  they  presented  themselves  in  the  discussion  of  the  subject. 
This  has  been  followed  with  a  discussion  of  the  more  general 
and  common  remedies  in  equity,  presenting  to  the  practitioner 
and  the  student,  in  as  clear  and  simple  a  manner  as  possible, 
the  practice  and  procedure  in  the  use  of  these  ordinary  reme- 

dies. 

That  large  and  important  class  of  statutory  causes  enforce- 
able in  the  equity  court,  with  the  special  proceedings  applica- 
ble to  them,  including  statutory  liens,  the  subjecting  of  stock- 
holders to  the  payment  of  material  and  labor  debts,  and  the 
numerous  other  actions  which  though  statutory  require  the  aid 
of  the  equity  court  for  their  enforcement,  together  with  forms 
of  pleadings,  motions,  orders  and  decrees  in  equity  courts,  have 
been  left  for  a  second  volume. 

With  the  hope  that  the  work  thus  far  completed  may  meet 
with  the  commendation  of  my  brethren  at  the  bar,  it  is  respect- 
fully submitted.  p^^^^^  ^  ^^^  2iLE. 

Detroit,  MicmaAN, 

January  20, 1904. 


TABLE  OP  CONTENTS. 


Eef erMices  are  to  sections. 

CHAPTER  I. 

THE   JURISDICTION   OF   THE    EQUITY   COURT. 

Legal  and  equitable  remedies   1 

History  of  equitable  jurisdiction   2 

The   ecclesiastics   as   chancellors 3 

The  conflict  between  courts  of  law  and  equity 4 

A  conscience  court    5 

What  the  jurisdiction  embraces 6 

Equitable  jurisdiction — How  divided   7 

Exclusive  jurisdiction    8 

Concurrent    jurisdiction    9 

Auxiliary  jurisdiction    10 

Equity  having  obtained  jurisdiction  will  retain  it  and  award  com- 
plete   relief    11 

The  maxims  in  equity  applicable  to  jurisdiction 12 

CHAPTER  11. 

PLEADINGS    AND    PRACTICE    IN    EQUITY. 

The    pleadings    13 

Practice  as  distinguished  from  pleading 14 

Records  and  orders  of  the  court 15 

Equity  pleading  and  practice 16 

The  pleadings  in  the  ordinary  equity  case 17 

CHAPTER  III. 

THE   BILL   IN   EQUITY. 

The  office  and  nature  of  the  bill 18 

The  parties  to  a  bill  in  equity  are  called 19 

An  information  in  equity 20 

How  bills  in  equity  are  divided — Definitions 21 

( 1 )  How  original  bills  are  divided i 22 

How  original  bills  praying  relief  are  divided 23 

(2)  How  original  bills  not  praying  relief  are  divided 24 

How  bills  not  original  are  divided 25 

Certain  rules  of  pleading  applicable 26 

Chart  of  the  equity  bill 27 

The  nine  parts  of  the  equity  bill 28 


Vlll  TABLE    OF    CONTENTS. 

References  are  to  sections. 

U)  The  address  29 

(2)  The  introduction   30 

(3)  The  premises  or  stating  part 31 

The  plaintiff  must  state  his  whole  case 32 

Necessary  allegations  to  support  an  equity  case 33 

Form  and  manner  of  statement 34 

Setting  up  deeds,  mortgages,  contracts,  records,  etc 35 

When  must  tender  of  performance  be  made  in  the  bill 36 

Allegations  as  to  adversary's  claim 37 

Allegations  of  fraud 38 

The  bill  must  not  be  multifarious 39 

Bill  may  be  framed  with  a  double  aspect 40 

Scandal   and   impertinence 41 

(4)  The  confederating  part 42 

(5)  The  charging  part 43 

(6)  The  jurisdictional  clause 44 

(7)  The  interrogating  part 45 

(8)  Prayer  for  relief 46 

(9)  Prayer  for  process 47 

CHAPTER  IV. 

PARTIES  TO  THE  BILL. 

The  aim  of  the  equity  court  is  to  do  complete  justice 48 

Classification  of  parties 49 

Exceptions  to  the  rule  that  all  interested  must  be  made  parties...  50 

First.  Where  the  interested  parties  in  the  controversy  are  very 
numerous. 

Second.  Where  the  party  is  absent  from  the  jurisdiction. 

Third.  Where  certain  parties  interested  are  unknown. 

Fourth.  Where  a  personal  representative  of  a  deceased  person  is 
a  necessary  party  but  his  authority  is  disputed. 

Who  should  be  parties  complainant 51 

Real  parties  in  interest 52 

One  for  all  or  a  part  for  many 53 

Infants  as  complainants  54 

Married  women  as  plaintiffs 55 

Idiots,  lunatics,  and  weak-minded  persons 50 

Parties  defendant   57 

Some  exceptions   58 

Persons  partially   incapacitated 59 

Joinder,  misjoinder,  non-joinder  of  complainants 60 

(1)  Joinder  of  complainants. 

(2)  Misjoinder  of  complainants. 

(3)  Non-joinder  of  complainants. 

Joinder,  misjoinder,  non-joinder  of  defendants 61 

(1)  Joinder  of  defendants. 

(2)  Misjoinder  of  defendants. 

(3)  Non-joinder  of  defendants. 


TABLE    OF    CONTENTS.  ^^ 

References  are  to  sections. 

...  .62 

Bringing  In  new  parties 

Intervention  i'-' 

Some  observations  as  to  parties— Corporations— Partnerships- 
Trustee  and  cestui  que  irMSt— Heirs,  executors  and  administra- 
tors    


64 


CHAPTER  V. 

DRAFTING  THE  BILL. 

Certainty  and  clearness  to  be  observed ^^ 

The  necessary  parts  of  the  nine  parts  of  the  bill 

Signing  the  bill 

Verification  of  the  bill 

Form  of  the  several  parts  of  the  original  bill 

A  form  of  bill  in  equity 

General  observations  as  to  form,  etc 

The  filing  of  the  bill 

CHAPTER  VI. 

PROCESS  AND  DEFENDANT'S  APPEARANCE. 


73 

74 


76 
77 
78 
79 
80 
81 
82 
83 
84 


The,  origin  of  the  chancery  subpoena 

The  writ  of  subpoena  and  its  general  use 

The  form  of  the  writ— How  addressed ^^ 

Service  of  process  

Service  upon  infant  defendant 

Service  upon  lunatics 

Service  upon  prisoners 

Service  upon  married  woman 

Service  upon  corporations 

Service  upon  a  state 

By  whom  served 

Substituted  service    

Service  when  defendant  is  without  the  jurisdiction »& 

Validity  of  judgments  and  decrees  based  on  service  of  process  be- 
yond the  jurisdiction 

Process  in  divorce  suits 

Defective  service  waived  by  appearance  or  admission  of  service...     88 

Appearance    

How  appearance  is  entered 

Actions  paramount  to  voluntary  appearance 91 

The  effect  of  appearance " 

Compulsory  appearance   

How  appearance  entered  by  persons  under  disability 94 

Husband    and   wife 

Appearance  by  corporation 

b 


X  TABLE    OF    CONTENTS. 

References  are  to  section& 

CHAPTER  VII. 

PROCEEDINGS  TO  A  DECREE  PRO  CONFESSO. 

The  defendant  failing  to  appear 97 

For  failure  to  appear  and  defend — Bill  taken  as  confessed 98 

Default  for  failure  to  demur,  plead  or  answer 99 

Appearance  of  defendant  entitles  him  to  notice  of  subsequent  pro- 
ceedings      100 

Facts  admitted  by  defendant's  default 101 

If  defendant  an  infant  or  person  under  disability 102 

Bill  amended  after  default 103 

Opening  or  setting  aside  the  default 104 

When  decree  has  been  taken  upon  order  pro  confesso 105 

The  procedure  for  setting  aside  the  order  pro  confesso 106 

CHAPTER  VIII. 

DEFENSES  IN  EQUITY. 
The  several  kinds  of  defenses 107 

I.    DEMIJEBB31. 

The  nature  of  the  demurrer 108 

A  speaking  demurrer 109 

Admissions  by  the   demurrer 110 

Extent    of   admissions Ill 

Kinds  of  demurrers:    (1)  General;    (2)   Special 112 

(1)  General  demurrer. 

First. 

Demurrer  for  want  of  jurisdiction 113 

Second. 
For  misjoinder  of  causes  of  action — Multifariousness 114 

Third. 

For  defects  as  to  parties — (a)  Misjoinder — Non-joinder 115 

(b)  Demurrer  because  of  incapacity  of  parties 116 

Fourth. 

For  defects  in  other  allegations  or  want  of  material  allegations. . .  117 
The  demurrer  may  be  to  the  discovery  sought  as  well  as  to  the 

relief  prayed  for 118 

Reasons  for  demurring  to  bill  praying  relief  applicable  when  bill 

is   for  discovery 119 

When  bill  for  relief  and  discovery,  defendant  may  demur  to  the 

relief,  or  to  the  discovery,  or  to  both 120 

The  form  of  the  general  demurrer 121 

(2)    Special   demurrer 122 


TABLE    OF    CONTENTS.  XI 

References  are  to  sections. 

Demurrer  ore  tenus 123 

Joint    demurrer    124 

When  may  the  demurrer  be  filed 125 

The  extent  of  the  demurrer 126 

Demurrers  to  bills  not  original 127 

Bringing  the  demurrer  to  a  hearing 128 

The  hearing  of  the  demurrer 129 

The  judgment  or  decree  upon  general  demurrer 130 

Demurrer  overruled  by  plea  or  answer 131 

The  effect  of  failing  to  demur 132 

II.  Defense  by  Plea. 

The   plea    1^^ 

The  plea  should  contain  but  one  defense 134 

The  plea  differs  from  a  demurrer 135 

The  plea  differs  from  an  answer 136 

The  extent  of  the  plea 137 

Necessary   averments    138 

A  division  of  pleas  based  upon  facts  alleged 139 

(a)  Pure  pleas. 

(b)  Negative  pleas,  or  pleas  not  pure, 

(c)  Anomalous  pleas. 

Admissions  by  the  plea 140 

The  plea  overruled  by  answer 141 

Pleas  to  the  relief 142 

First.  Pleas  in  Abatement. 

Fleas  In  abatement  defined  and  classified 143 

(a)  Pleas  to  the  jurisdiction 144 

(b)  Pleas  to  the  person 145 

(c)  Pleas  to  the  bill 146 

Second.  Pleas  in  Bar. 

Nature  and  definition 147 

Pleas  in  bar  are  of  three  kinds 148 

First.   Pleas  Founded  Upon  Borne  Bar  Created  by  Statute. 

Pleas   are   divided 149 

(a)  Pleas  of  the  statute  of  limitation 150 

Laches   1^1 

Where  the  case  falls  within  the  exceptions  to  the  statute  or  there 

is  reasonable  excuse  for  the  delay 152 

Statute  of  limitations  in  cases  of  trust 153 

Constructive  trusts   154 

(b)  Pleas  of  the  statute  of  frauds 155 

(c)  Pleas  founded  upon  any  statute  private  or  public 156 

The  form  of  pleading  the  several  statutes 157 


Xii  TABLE   OF   CONTENTS. 

References  are  to  sections. 
Second.   Pleas  in  Bar  Founded  Upon  Some  Matters  of  Record. 

When  may  be  interposed ^^^ 

Where  the  bill  alleges  fraud  in  obtaining  the  former  decree  or 
judgment  ^^^ 

Judgments  or  decrees,  foreign  or  domestic,  legal  or  equitable 160 

Third.    Pleas  Founded  on  Matter  in  Pais. 

Plea  161 

(1)  A  plea  founded  upon  a  release 162 

(2)  A  plea  founded  upon  a  stated  account 162 

Substance  of  the  plea  of  account  stated 164 

(3)  Plea  of  a  settled  account 165 

(4)  A  plea  of  an  award 166 

(5)  A  plea  of  purchase  for  a  valuable  consideration  without  notice 

of  equities    16*^ 

Persons  affected  by  notice  may  have  the  benefit  of  the  want  of  no- 
tice by  intermediate  parties 168 

(6)  A  plea  of  title  in  the  defendant 169 

Pleas  to  the  discovery  sought 1"^^ 

The  several  grounds  of  pleas  to  discovery 171 

(1)  Pleas  to  the  jurisdiction. 

(2)  Pleas  to  the  person. 

(3)  Pleas  to  the  bill  or  frame  of  the  bill. 

(4)  Pleas  in  bar. 

The  frame  of  the  plea 172 

When  the  plea  must  be  supported  by  an  answer 173 

The  answer  in  support  of  the  plea  no  part  of  the  defense 174 

The  form  of  a  plea 175 

The  plaintiff's  reply 176 

Plaintiff  may  amend  his  bill  after  plea 177 

Withdrawing  the  plea 178 

The  hearing 179 

The  determination  or  decree  of  the  court  upon  the  hearing 180 

III.  The  Answer. 

The  answer  of  the  defendant  in  general 181 

The  answer  is  twofold  in  its  nature  and  effect 182 

Requisites  of  the  answer 183 

Defenses  which  may  be  interposed  by  answer 184 

The  answer  may  be  used  in  conjunction  with  other  defenses 185 

Answer  may  contain  several  defenses 186 

Discovery   187 

The  answer  as  to  matters  of  discovery  must  be  responsive 188 

The  answer  when  there  are  several  defendants 189 

The  frame  of  the  answer 190 

Signing  and  swearing  to  the  answer 191 


TABLE    OF   CONTENTS.  XUl 

References  are  to  sections. 

The  waiver  of  the  sworn  answer 192 

Compelling  an  answer 193 

Amendments    194 

Exceptions  to  the  answer 195 

(1)  Exceptions   for   insufficiency 196 

Exceptions  only  allowed  when  answer  under  oath  is  required 197 

When  there  is  an  answer  to  a  part  of  a  bill,  a  plea  to  a  part,  or  a 

demurrer  to  a  part 198 

Exceptions  to  an  answer  to  an  amended  bill 199 

Failing  to  file  exceptions — Effect  of 200 

A  demurrer  to  an  answer  unknown 201 

(2)  Exceptions  for  scandal  and  impertinence 202 

Excepting  to  an  answer  accompanying  a  plea  allows  the  plea 203 

Form  of  exceptions 204 

Submissions  to  exceptions 205 

Compelling  a  better  answer 206 

The  answer  as  evidence 207 

The  weight  of  evidence 208 

Admissions  in  the  answer 209 

The  answer  will  not  afford  affirmative  relief 210 

Some  exceptions    211 

The  cross-bill    212 

Necessity  and  object  of  cross-bill 213 

The  relief  sought  must  be  equitable  relief 214 

Parties  to  the  cross-bill 215 

Cross-bill  by  persons  not  parties  to  the  original  suit 216 

The  frame  of  the  cross-bill 217 

Substance  or  body  of  the  bill 218 

The  prayer  of  the  bill 219 

Signing  and  verifying  the  bill 220 

Filing  the  bill 221 

Leave  to  file 222 

Answer  in  the  nature  of  a  cross-bill 223 

Process,  when  necessary 224 

Defenses  to  the  cross-bill 225 

Replication  of  complainant  in  cross-bill 226 

The  hearing  227 

IV.    DiSCLAIMEB. 

The  nature  of  the  disclaimer 228 

When  it  can  be  interposed 229 

When  both  an  answer  and  disclaimer  may  be  filed 230 

A  disclaimer  operates  as  an  estoppel 231 

If  the  disclaimer  is  filed  on  account  of  mistake  or  ignorance 232 

Signing,  verifying,  filing  and  serving 233 

The  decree  in  case  disclaimer  is  filed 234 

The    costs 235 

A  chart  of  defenses 236 


XIV  TABLE    OF    CONTENTS. 

References  are  to  sections. 

CHAPTER  IX. 

THE  REPLICATION. 

The  nature  of  the  replication 237 

When  complainant  should  file  a  replication 238 

Filing  a  replication  waives  the  right  to  except 23» 

Time  for  filing  the  replication 240 

The  form  of  a  general  replication 241 

Waiver  of  the  replication 242 

CHAPTER  X. 

AMENDMENTS,    SUPPLEMENTAL    PLEADINGS,    AND    REVIVOR. 
Allowed  in  certain  cases 243 

I.  Amendments. 

Amendments  allowed  to  both  parties 244 

Mispleading  in  matter  of  form 245 

Amendments  rest  largely  in  the  discretion  of  the  court 246 

When  the  pleadings  are  verified 247 

As  to  matters  occurring  after  filing  the  original  bill 248 

When  application  should  be  made  to  amend 249 

When  amendments  of  the  bill  will  be  allowed 250 

When  amendments  of  the  answer  will  be  allowed 251 

Same — At  the  hearing 252 

Same— After  the  hearing 25a 

Amendments  allowed  by  appellate  courts 254 

How  amendments  made 255 

The  effect  of  amendment 256 

Amendments  making  a  new  and  different  case  not  allowed 257 

Same — Limitations  to  amend  the  answer 258 

Amendment  of  the  answer  at  the  hearing 259 

II.    SUPPLEMENTAI,    PLEADINGS. 

The  oflSce  and  nature  of 260 

Must  obtain  leave  of  court  to  file 261 

Granting  leave  to  file  supplemental  pleadings 2G2 

Some  limitations   263 

Parties  to  supplemental  bill 264 

Substance  and  frame  of  the  supplemental  bill 265 

Proceedings  upon  filing  supplemental  bill 266 

Defenses  to  the  supplemental  bill  are  the  usual  defenses  in  equity.  267 

An  original  bill  in  the  nature  of  a  supplemental  bill 268 

A  supplemental  answer 269 

Leave  of  court  must  be  obtained 270 


TABLE    OF    CONTENTS.  XV 

References  are  to  sections. 

III.  Bills  of  Revivor. 

The  nature  of  the  bill  of  revivor 271 

The  interest  necessary  to  support  the  bill 272 

Parties  to  the  bill  of  revivor 273 

Same  subject — Parties  defendant 274 

Original  bill  in  the  nature  of  a  bill  of  revivor 275 

When  the  defendants  can  sustain  a  bill  of  revivor 276 

The  form  of  the  bill  of  revivor 277 

Distinction  between  the  bill  of  revivor  and  a  bill  in  the  nature  of  a 

bill   of   revivor 278 

The  form  of  the  bill  in  the  nature  of  a  bill  of  revivor 279 

Bills  of  revivor  and  supplement 280 

Defenses, 

Defenses  to  the  several  bills  of  revivor 281 

By  plea. 
By  answer. 
Replication. 
The  hearing. 

CHAPTEE  XI. 

INTERLOCUTORY  APPLICATIONS  AND  PROCEEDINGS. 

Interlocutory  applications  282 

Motions. 

Nature  and  kinds  of  motions 283 

(1)  Ex  parte  motions 284 

(2)  Special  motions  upon  notice  to  the  opposite  party 285 

Who  may  make  motions 286 

Service  and  proof  of  service  of  motion  and  notice  of  hearing 287 

The  hearing  of  motions 288 

Petitions. 

Proceeding  by  petition 289 

Form  of  the  petition 290 

Serving  the  petition  and  notice  and  filing  the  same 291 

The  proofs  upon  which  the  petition  is  to  be  heard  and  the  hearing  292 

The  use  of  petitions 293 

Intervention — Who   may  intervene 294 

The  petition  for  intervention 295 

Defenses  to  petitions  for  intervention 296 

CHAPTER  XII. 

EVIDENCE. 

Taking  proofs  for  the  hearing 297 

Practice  in  United  States  court 298 

Depositions  of  witnesses  beyond  the  jurisdiction  of  the  court 299 


^Vl  TABLE    OF    CONTENTS. 

References  are  to  sections. 

Admission   of  evidence 300 

Pleadings  as  evidence 30i 

The  burden  of  proof 302 

Proof  confined  to  issue  made  by  pleading 303 

Effect  of  variance 304 

CHAPTER  XIII. 

THE  HEARING. 

Bringing  the  cause  to  hearing 305 

Demurrer  3^lg 

The  plea    3qY 

Hearing  on  bill  and  answer 3O8 

Hearing  on  bill,  answer  and  replication 309 

Final  hearing  on  pleadings  and  proofs 31O 

Matters  disposed  of  at  the  final  hearing 311 

Conflict  in  state  and  federal  jurisdictions 312 

Objections  to  the  hearing 313 

A  feigned  issue 31^ 

Submission  of  facts  to  jury  discretionary  with  court 315 

Effect  of  the  verdict  or  findings  of  the  jury 3I6 

Instructions  to  jury,  or  order  as  to  verdict,  not  subject  for  excep- 
tions    017 

The  court's  determination  at  the  hearing 318 

CHAPTER  XIV. 

PROCEEDINGS  BEFORE  MASTERS  OR  COMMISSIONERS. 

The  master  in  chancery 319 

Duties  ministerial  and  judicial 320 

The  court  cannot  refer  all  the  issues  to  a  master  to  hear,  try  and 

determine   091 

Objections  and  exceptions  to  the  report  of  the  master 322 

CHAPTER  XV. 

THE  DECREE. 

The  decree  in  equity  corresponds  to  the  judgment  at  law 323 

(1)  A  final  decree 324 

(2)  Interlocutory  decrees  325 

Some  other  distinguishing  features 326 

Some  essentials  to  a  valid  decree 327 

The  frame  of  the  decree 393 

Drawing  and  settling  the  decree 329 

A  decree  after  the  death  of  the  party 33O 

Decrees  pro  confesso 331 


TABLE   OF    CONTENTS,  XVll 

References  are  to  sections. 

332 
Enrolment  of  decree 

Necessity  of  enrolment 

Some  changes  the  court  is  permitted  to  make 334 

Reopening  the  cause— Rehearing ^^^ 

The  practice  and  reasons  for  granting 336 

Reopening  decrees  taken  pro  confesso  and  permitting  defense 337 

The  party  moving  to  reopen  the  cause  for  rehearing  must  not  be 

guilty  of  laches ^^^ 

Form  and  requisites  of  the  application,  filing  and  serving  the  same, 

and  the  answer  thereto 

340 
The  hearing  

CHAPTER  XVI. 

THE  BILL  OF  REVIEW  AND  BILLS  IN  THE  NATURE  OF  BILLS 

OF  REVIEW. 

The  nature  and  scope  of  the  bill 341 

The  grounds  of  the  bill 342 

Error  of  judgment  as  to  facts 343 

Bill  founded  on  discovery  of  new  matter 344 

Newly-discovered  evidence  345 

Some  prerequisites  for  filing  a  bill  of  review— Must  obey  the  decree  346 

Other  prerequisites   , 347 

Application  for  leave  to  file  a  biU  of  review 348 

The  hearing  of  petition  for  leave  and  the  order  thereon 349 

Parties  to  the  bill 350 

Frame  of  the  bill  of  review 351 

Bills  in  the  nature  of  bills  of  review 352 

Bills  to  impeach  the  decree  on  account  of  fraud 353 

Bills  to  carry  decrees  into  execution 354 

When  should  the  bill  be  filed 355 

Defenses  to  bills  of  review 856 

The  hearing  357 

Enforcement  of  decree — Writ  of  execution » 357a 

CHAPTER  XVII. 

APPEALS. 

The  nature  of  the  appeal  in  equity 358 

Appeal  lies — Final  decree  359 

By  whom  taken 360 

The  procedure  in  obtaining  and  perfecting  an  appeal 361 

Dismissal  of  the  appeal 362 

Notice  of  motion  to  dismiss  appeal 363 

The  hearing 364 

The  decision  and  decree  of  the  court 365 


XV ill  TAliL?:    OF    CONTENTS. 

References  are  to  sections. 

CHAPTER  XVIII. 

REMEDIES    IN    EQUITY. 

The  object  of  the  chapter 366 

Classification  of  equitable  remedies 367 

Statutory  actions   3C8 

CHAPTER  XIX. 

REMEDIES  NOT  SEEKING  RELIEF,  BUT  WHICH  ARE  IN  THEIR 
NATURE  AND  PURPOSE  ADMINISTRATIVE  AND  PROTECTIVE. 

Section  I.  Interple.\der. 

The  nature  and  object  of  the  action 369 

The  complainant  a  mere  stakeholder,  having  no  interest  in  the  mat- 
ter in  controversy 370 

Seeming  exceptions   371 

As  to  title  of  claimants  to  the  property,  obligation  or  thing  in  con- 
troversy    372 

The  real  oflBce  of  interpleader 373 

Injunction  to  protect  plaintiff  from  a  multiplicity  of  suits 374 

Plaintiff  should  tender  performance  of  the  duty  or  obligation  or 

secure  it   375 

The  parties  to  the  bill  of  interpleader 376 

The  bill  of  complaint 377 

The  prayer  378 

Verification 379 

Defenses  to  bills  of  interpleader 380 

The  replication   381 

The  hearing  and  decree 382 

Section  II.  Receivebs. 

Receivers — Nature  and  oflSce  of,  in  equity  suits 383 

Definition  and  some  requisites 384 

Jurisdiction  to  appoint 38.^ 

Must  be  in  pending  suit 386 

In  what  cases  appointed 387 

Some  special  cases 388 

Receivers  over  real  property 389 

The  application  for  appointment 390 

The  order  on  application  for  appointment 391 

The  title  or  right  of  possession  and  control  of  the  receiver 392 

The  New  York  rule 393 

Something  of  the  powers,  duties  and  obligations  of  the  receiver 394 

Foreign  and  ancillary  receivers 39.5 

Interference  with  receivers — Contempt  of  court 396 

Procedure  in  cases  for  contempt 397 


TABLE    OF    CONTENTS.  XIX 

References  are  to  sections. 

CHAPTER  XX. 

INJUNCTIONS. 

The  remedy ^^^ 

Cases  in  which  the  court  will  not  grant  an  injunction 399 

Cases  in  which  courts  of  equity  will  allow  injunction 400 

Several  Kinds  of  Injunctions. 

Kinds  of  injunctions ^^^ 

Peocedxjke. 

The  bill  of  complaint 402 

Obtaining  the  writ 403 

The  order,  writ  or  interlocutory  decree 404 

Injunction  bond  405 

Dissolution  or  modification  of  the  injunction 406 

CHAPTER  XXI. 

REMEDIES   ESTABLISHING  PRIMARY   RIGHTS. 

The  remedies  to  be  discussed 407 

I.  Actions  foe  Assignment  of  Doweb. 

History  and  development  of  dower 408 

The  procedure   409 

II.  Partition. 

The  jurisdiction  410 

The  subject-matter  of  the  procedure — The  property 411 

Who  may  enforce  partition 412 

The  bill  of  complaint 413 

Defenses  in  partition 414 

Default  of  defendant  and  procedure 415 

The  hearing  and  decree  or  order 416 

III.  Reforming  a  Contract,  Deed,  oe  Written  Obligation. 

When  equity  will  take  jurisdiction 417 

The  mistake  upon  which  the  remedy  may  be  based 418 

The  procedure — The  bill  of  complaint 419 

Defenses  420 

Proofs 421 

IV.  Rescission,  Cancellation,  Suerendeb  ob  Dischabge  of  Instru- 
ments. 

The  equitable  jurisdiction 422 

Some  cases  in  which  the  remedies  are  applicable 423 

The  procedure  424 

To  remove  cloud  from  title — Nature  of  remedy 425 


XX  TABLE    OF    CONTENTS. 


References  are  to  sections. 


Adequate  remedy  at  law 426 

Possession  by  plaintiff 427 

The  pleadings  428 

CHAPTER  XXII. 

REMEDIES  FOR  THE  ENFORCEMENT  OP  OBLIGATIONS. 

I.  Actions  fob  the  Specific  Peefobmance  of  Contbacts. 

Specific  performance 429 

Not  a  matter  of  absolute  right  but  of  discretion 430 

Some  requisites  to  the  relief 431 

Tender  of  performance 432 

The  procedure — The  parties 433 

The  bill  of  complaint 434 

Defenses 435 

The  decree 436 

II.  Actions  fob  the  Declaration  and  Enfobcement  of  Tbusts   and 
Obligations  Arising  fbom  Fiduciaey  Relations. 

Trusts — Nature  of  and  definition 437 

Creation  or  declaration  of  trust 438 

Equitable  remedies — Procedure  439 

Equity  will  follow  the  trust  property 440 

Pleadings  and  procedure  in  enforcement  of  trusts 441 

The  bill  of  complaint 442 

The  defense   443 

The  decree  >.  •  444 

III.    CONTEIBUTION,    EXONEBATION     AND    SUBBOGATIOIT. 

The  relation  and  nature  of  the  several  remedies 445 

The  jurisdiction  of  equity — Contribution — Subrogation 446 

To  what  cases  subrogation  applies 447 

A  mere  volunteer  not  entitled  to  remedy 448 

One  guilty  of  fraud  or  negligence  not  entitled  to  the  relief 449 

When  the  remedy  is  complete 450 

Pleadings — Procedure — Bill  of  complaint 451 

Defenses   452 

IV.  Actions  foe  the  Dissolution  of  Paetneeships  and  foe  an  Ac- 
counting. 

The  equitable  jurisdiction  in  partnership  cases 453 

Dissolution  of  a  partnership 454 

The  equitable  remedy 455 

Some  conclusions  456 

The  pleadings— The  bill  of  complaint 457 

The  defenses  458 

V.  Actions  Where  Damages  Abe  Awarded. 

As  an  equitable  remedy 459 


TABLE    OF    CONTENTS.  XXI 

References  are  to  sections. 

CHAPTER  XXIII. 

REMEDIES  FOR  THE  ENFORCEMENT  OP  LIENS  OR  SUBJECTING 
CERTAIN  SPECIFIC  PROPERTY  TO  THE  PAYMENT  OP  OBLI- 
GATIONS; AND  INCIDENTAL  THERETO  THE  RIGHT  OF  RE- 
DEMPTION AND  BILLS  TO  REDEEM. 

I.  Actions  fob  the  Foreclosure  of  Mortgages  ob  Pledges. 

Mortgage  foreclosure    460 

The  nature  and  purpose  of  the  foreclosure 461 

When  the  right  to  foreclose  accrues 462 

Some  limitations  and  exceptions 463 

The  forum   464 

Parties  to  the  action — Complainants 465 

Defendants  466 

The  bill  of  complaint 467 

Defenses 468 

Compelling  foreclosure 469 

Defenses — By  cross-bill    470 

Proceedings  in  foreclosure  before  final  hearing 471 

The  hearing 472 

The  decree  and  order  confirming  sale 473 

Order  of  sale — Inverse  order  of  alienation 474 

Redemption  475 

Redemption  of  entire  mortgage  and  not  a  part 476 

The  bill  to  redeem 477 

Parties  to  a  bill  to  redeem 478 

(1)  Complainants. 

(2)  Defendants. 

The  prayer  of  the  bill 479 

The  decree  480 

Statute  of  limitations — Laches 481 

II.  Marshaling  Secltrities. 

The  equitable  doctrine 482 

When  doctrine  not  observed — Subrogation 483 

When  paramount  creditor  releases  security  held  by  him  alone 484 

Enforcement  of  the  doctrine 485 

III.  Creditors'  Bills  and  Bills  in  Aid  of  Execution. 

Creditors'  suits — Kinds  and  object  of 486 

(1)  Judgment  creditors'  bills 487 

Some  requisites  to  the  filing  of  the  bill 488 

The  judgment — The  execution  and  return 489 

Objections  to  the  regularity  of  the  judgment 490 

( 2 )  Bills  in  aid  of  execution 491 

Sufficiency  of  lien  by  attachment 492 


XXll  TABLE    OF   CONTENTS. 

References  are  to  sections^ 

Parties  to  creditors'  bills 498 

(1)  Plaintiffs. 

(2)  Defendants. 

The  form  of  the  bill 494 

Bill  for  double  purpose,  to  reach  equitable  assets  and  in  aid  of  exe- 
cution     495 

The  defense — Demurrer — Plea 496 

The  answer   497 

Injunction  and  receiver 498 

Lien  obtained  by  creditor's  suit — Priority 499 

The  decree  500 

The  form  of  the  decree 501 


TABLE  OF  CASES  CITED. 


Eeferences  are  to  sections. 


Abbott  V.  Allen,  468. 

Abbott  V.  Godfrey's  Heirs,  467. 

Abbott  V.  Gregory,  460. 

Abernethy  v.  Hutchinson,  400. 

A.  Booth  &  Co.  V.  Siebold,  400. 

Abraham  v.  Northern  Ins.  Co.,  418. 

Ackerman  v.  Bogrisch,  418. 

Adair  v.  New  River  Co.,  50. 

Adams  v.  Circuit  Judge,  84. 

Adams  v.  Gill,  256. 

Adams  v.  Heckscher,  84. 

Adams  v.  Kehlor  Milling  Co.,  46. 

Adams  v.  Phillips,  256. 

Adams  v.  Valentine,  211. 

Adams  v.  Way,  125. 

Adams  v.  Wheeler,  419. 

Adamski   v.   Wieczorek,   343,   345. 

Adelbert  College  v.  Toledo,  etc., 
215. 

^tna  Life  Ins.  Co.  v.  Middleport, 
448. 

^tna  Life  Ins.  Co.  v.  Smith,  146. 

Agar  V.  Fairfax,  410. 

Agard  v,  Valencia,  431. 

Agnew  V.  Bell,  445. 

Aholz  V.  Durfee,  345. 

Ahrend  v.  Odiorne,  117. 

Aiken  v.  Morris,  468. 

Akerly  v.  Vilas,   400. 

Albany  City  Bank  v.  Dorr,  134,  388. 

Albany  City  Bank  v.  Schermer- 
hom,  385,  396,  397. 

Albany  City  Savings  Inst.  v.  Bur- 
dick,  417,  418. 

Albert,  etc.  v.  The  State,  443, 

Albertson  v.  Reding,  232. 

Alden  v.  Pryal,  468. 

Aldrich  v.  Aldrich,  445. 

Aldrich  v.  Cooper,  482. 


Aldrich  v.  Hapgood,  445. 

Aleck  V.  Jackson,  377. 

Alexander  v.  Horner,  49. 

Alfred,  etc.  Brick  Co.  v.  Trott,  238. 

Alfred  Richards  Brick  Co.  v.  At- 
kinson, 130. 

Alger  v.  Anderson,  50,  154. 

Alkire,  etc.  Co.  v.  Ballenger,  438. 

Allan  V.  Woodson,  256. 

Allen  V.  Allen,  223. 

Allen  V.  Montgomery,  493. 

Allen  V.  Mower,  207. 

Allen  V.  Pedro,  401. 

Allen  V.  Randolph,  162,  179. 

Allen  V.  Russell,  440. 

Allen  V.  Shackelton,  468. 

Allen  V.  Swoope,  478. 

Allen  V.  Taylor,  261,  264. 

Allen's  Ex'rs  v.  Roll,  465. 

Allis  V.  Withlacoochee,  245,  246. 

Allis-Chalmers  Co.  r.  Reliable 
Lodge,  400. 

Allgood  V.  Bank,  350. 

Allured  v.  Voller,  88. 

Almy  y.  Piatt,  492. 

Alsager  v.  Johnson,  41. 

Alston  V.  Massenburg,  392. 

Alston  V.  Munford,  483. 

Alston,  etc.  Ins.  Co.  v.  Buckmaster, 
427. 

Alston  et  ux.  v.  Jones,  60. 

Ambler  v.  Choteau,  110. 

American  Ass'n  v.  Innis,  12. 

American  Bible  Soc.  v.  Hague,  256. 

American  Bible  Soc.  v.  Price,   250. 

American  Box  Match  Co.  v.  Cros- 
man,  40. 

American  Dock,  etc.  Co.  v.  Trus- 
tees, 314. 


XXIV 


TABLE    OF    CASES    CITED. 


References  are  to  sections. 


American,   etc.   Bank  v.   McGetti- 

gan,  392. 
American,  etc.   Co.   v.   Burlington, 

etc.  Ass'n,  477. 
American,  etc.  Co.  v.  Phoenix,  etc. 

Co.,  400. 
American     Freehold,    etc.    Co.    v. 

Williams,  362. 
American  Ins.  Co.  v.  Fisk,  9. 
American    Press   Ass'n   v.    Brant- 

ingham,  369. 
American  Trust   &    Savings   Bank 

V.  Pack,  Woods  &  Co.,  84. 
American  Waltham  Watch  Co.  v. 

United  States  Watch  Co.,  400. 
Ames  V.  King,  196. 
Ames  V.  Union  Pac.  Ry.  Co.,  395. 
Amiss  V.  McGinnis,  350, 
Andel  v.  Starkel,  400. 
Anderson  v.  Harvey,  399. 
Anderson  v.  Newman,  120. 
Anderson  v.  Reed,  328. 
Anderson  v.  White  et  al.,  276. 
Anderson  Transfer  Co.  v.  Fuller, 

38. 
Andrews  v.  Gillespie,  468. 
Andrews  v.  Halliday,  328. 
Andrews  v.  Kibbee,  213,  218. 
Andrews  v.  McCoy,  40. 
Andrews  v.  National,    etc.    Works, 

498. 
Andrews  v.  Scotton,  461. 
Angel  V.  Railway  Co.,  256. 
Angier  v.  Ash,  468. 
Angle  V.  Draper,  489. 
Anheuser-Busch,  etc.  Co.  v.  Peter- 
son, 86. 
Anthony  v.  Shannon,  327. 
Appeal  of  Wilhelm,  40. 
Archer  v.  Long,  363. 
Arden  v.  Arden,  169. 
Arden  v.  Walden,  337. 
Arents  v.  Blackwell,  etc.  Co.,  388. 
Arkansas,   etc.   Ass'n  v.   Madden, 

399. 
Arlina  v.  Miller,  183. 
Armatage  v.  Fisher,  110. 
Armatage  v.  Toll,  483. 


Armengaud  v.  Coudert,  162. 

Armstead  v.  Smith,  406. 

Armstrong  v.  Building  Ass'n,  100. 

Armstrong  v.  Ross,  250. 

Armstrong  v.  Sweeney,  406. 

Arn  V.  Am,  373. 

Arnaud  v.  Grigg,  251. 

Arnold  v.  Chesebrough,  251. 

Arnold  v.  Kyle,  184. 

Arnold  v.  Slaughter,  197. 

Arthur  v.  Scott,  51. 

Arundel  v.  Phipps,  55. 

Ashburton  v.  Ashburton,  444. 

Ashmead  v.  McCarthur,  473. 

Ashmore  Highway,  etc.  v.  Green. 
399. 

Aspen  v.  Rucker,  411. 

Aspinwall  v.  Sacchi,  445. 

Atherton  v.  Roche,  418. 

Atkins  V.  Faulkner,  101. 

Atkinson  v.  Felder,  459. 

Atkinson  v.  Hall,  461. 

Atkinson  v.  Manks,  373. 

Atlanta  Mills  v.  Mason,  212. 

Atlantic,  etc.  Co.  v.  Nelms,  418. 

Atterbury  v.  Knox,  187. 

Attorney-General  v.  Bank  of  Co- 
lumbia, 393. 

Attorney-General  r.  Board  of  Au- 
ditors, 20. 

Attorney-General  v.  Brown,  123. 

Attorney-General  v.  College,  351. 

Attorney-General  v.  Continental 
Ins.  Co.,  359. 

Attorney-General  v.  Detroit,  400. 

Attorney-General  v.  Evart  Boom- 
ing Co.,  400. 

Attorney-General  v.  Great  North- 
ern Ry.  Co.,  400. 

Attorney-Genera  v.  Jackson,  146. 

Attorney-General  v.  North  Ameri- 
can Life  Ins.  Co.,  394. 

Attorney-General  v.  Oakland 
County,  183,  406. 

Attorney-General  v.  Stiles,  183. 

Attorney-General  v.  Supervisors, 
58. 

Attorney-General  v.  Wright,  285. 


TABLE    OF    CASES    CITED. 


XXV 


References  are  to  sections. 


Atwater  v.  Kinman,  C8. 

Atwill  V.  Ferrett,  122. 

Atwood  V.  Smith,  314. 

Audenried    v.    Philadelphia,    etc. 

Ry.  Co.,  401. 
Austin  V.  Riley  et  al.,  337. 
Auten  V.  City,  etc.  Ry.  Co.,  392. 
Avery  v.  Kellogg,  40. 
Axtell  V.  Pulsifer,  328. 
Ayers  v.  Chicago,  227. 
Ayers  v.  Gartner,  68. 
Aylesworth  v.  Crocker,  39,  114. 
Ayres  v.   Carver  et  al.,  212,   213, 

227. 
Babington  v.  Brewery  Co.,  499. 
Bacon  v.  Devinney,  485. 
Bacon  v.  Fay,  411. 
Bachman  v.  Sepiilveda,  500. 
Badger  v.  Badger,  117. 
Bagleyv.  Adams,  180. 
Bagley  v.  Bruce,  408. 
Bailey  v.  Adams,  134. 
Bailey  v.  Gould,  467. 

Bailey  V.  Ryder,  494,  500. 

Bailey,  etc.  Co.  v.  Young  et  al., 
189,  192. 

Baillie  v.  Sibbald,  138. 

Baily  v.   Tillinghast,  115. 

Baker  v.  Atkins,  68. 

Baker  V.  Fireman,    etc.    Ins.     Co., 
475. 

Baker  v.  Oil  Track  Co.,  222. 

Baker  v.  Safe,  etc.  Co.,  315. 

Baker  v.  Sanders,  400. 

Bakery.  Terrill,  447. 

Baldwin  v.  Aldrich,  416. 

Balen  v.  Mercier,  259. 

Ball  V.  Phenicie,  497. 

Ballin  v.  Lace  Imp.  Co.,  489. 

Ballin  v.  Loeb,  489. 

Ballentine  v.  Beall,  388,  489. 

Ballentine  V.  Clark,  331,  418. 

Ballew  V.  Roler,  447. 

Baltimore,  etc.  Co.  v.  Coats,  31. 

Baltimore,  etc.  Ry.  Co.  v.  Wheel- 
ing, 191. 

Bampton  v.  Birchall,  280. 

Bancroft  v.  Conant,  464. 


Bancroft  v.  Sawin,  481. 

Bank  v.  Blodgett,  314. 

Bank  v.  Bi'onson,  468. 

Bank  v.  Daniel,  151. 

Bank  v.  Dudley,  410. 

Bank  V.  Dundas,  343. 

Bank  V.  Finch,  101,  103,  256. 

Bank  V.  Halley,  110. 

Bank  v.  Hastings,  50. 

Bank  v.  Hemphill,  308. 

Bank  V.  Ibbotson,  445. 

Bank  V.  Loomis,  341. 

Bank  v.  Meach,  490. 

Bank  v.  Moulton,  314. 

Bank  v.  Rutland,  etc.  Ry.  Co.,  144. 

Bank  v.  Sandford,  210. 

Bank  v.  Tyler,  493. 

Bank  v.  Weisiger,  330. 

Bank,  etc.  v.  Biddle,  187. 

Bank    of    Bethel    v.    Pahquioque 

Bank.  271. 
Bank  of  Monroe  v.  Schermerhorn, 

388. 
Bank  of  Montreal  v.  Taylor,  26. 
Bank  of  Tomah  v.  Warren,  400. 
Bank  of  Utica  v.  Mersereau,  184. 
Bank  of  Utica  v.  Messereau,  120. 

Bank  of  Wooster  v.  Spencer,  490. 

Banking  Ass'n  v.  Insurance  Ass'n, 
362. 

Banks  v.  Carter,  288. 

Banks  v.  McDivitt,  400. 

Banks  V.  Walker,  468. 

Banner  v.  Dingus,  498. 

Bannister  v.  Miller,  183. 

Bannon  v.  Comegy's  Adm'r  et  al., 
248. 

Banta  v.  Marcellus,  276. 

Bar  v.  Closterman,  26. 

Barbee  v.  Inman,  188. 

Barber  v.  Barber,  9. 

Barber  v.     International,   etc.   Co., 
388. 

Barber  v.  Milner,  438. 

Barber  v.  Reynolds,  256. 

Barclay  v.  Brown,  328. 

Barcus  v.  Gates,  39. 

Barger  v.  Buckland,  500,  501. 


XXVI 


TABLE    OF   OASES    CITED. 


References  are  to  sections. 


Earksdale  v.  Davis,  126,  130. 
Barley  v.  Gittings,  390. 
Barlow  v.  Daniels,  358. 
Barnard  v.  Cushman,  31,  477. 
Barnes  v.  Greenzebach,  257. 
Barnes  v.  Jones,  388. 
Barnett  v.  Powers,  273. 
Barney  v.  City  of  Baltimore,  327. 
Barney  v.  Latham,  57. 
Barney  v.  McClancey,  467. 
Barnum,  etc.  Co.  v.  Speed,  406. 
Barr  V.  Essex,  400. 
Barr  v.  Lamaster,  411, 
Barr  v.  Voorhees,  498. 
Barrett  v.  Doughty,  123, 
Barrett  v.  McAllister,  98. 
Barroll  v.  Foreman,  380. 
Barstow  v.  Smith,  124. 
Barth  v.  Rosenfeld,  382. 
Barton  v.  Barbour,  213,  316. 
Barton  v.  Gray,  132. 
Barton  v.  International,    etc.    Co., 

209,  400. 
Barton  v.  Loan,  etc.  Ass'n,  390. 
Bartlet  v.  Lee,  464. 
Bartley  v.  Greenleaf,  431. 
Basey  v.  Gallagher,  131,  321. 
Bass  V.  Metropolitan,  etc.  Co.,  400. 
Bassett  v.  Nosworthy,  173. 
Bateman  v.  Wiatts,  404. 
Bates  V.  Bates,  418. 
Bates  V.  Wheeler,  434. 
Batesville  Inst.  v.  Kauffman,  418. 
Batre  v.  Auze's  Heirs,  98. 
Battell  V.  Matot,  184. 
Battery    Park    Bank    v.    Western 

Cawley  Bank,  392, 
Batty  V.  Snook,  460, 
Baum  V.  Baum,  431. 
Bauman  v.  Bean,  132. 
Baxter  v.  State,  165. 
Bayliss  v.  Lafayette,  etc.  Ry.  Co., 

294. 
Beach  V.  Kidder,  163. 
Beach  v.  Reynolds,  260. 
Beach  v.  Shaw,  475. 
Beach  v.  White,  388,  497. 
Beadel  v.  Perry,  400. 


Beadle  v.  Cole,  478. 

Beall  V.  Smith,  56. 

Beam  v.  Bennett,  495. 

Beatty  v.  Coble,  400. 

Beauchamp  v.  Putnam,  222, 

Beauchamp  v.  Supervisors,  406. 

Beck  V.  Beck,  225. 

Beck  V.  Burdett,  489,  491, 

Beckman  v.  Duncan,  416. 

Beddow  v.  Beddow,  399. 

Bedell  v.  Bedell,  125. 

Bedell  v.  Hoffman,    371,    373,    378, 

382. 
Beecher  V.  Anderson,  191. 
Beecher  v.  Beecher,  411. 
Beekman  v.  Waters,  256. 
Bein  v.  Heath,  55. 
Beith  V.  Porter,  491. 
Bellair  v.  Wool,  421, 
Bellinger  v.  Lehman,  246. 
Bell  v.  Bell,  330. 
Bell  V.  Felt,  424. 
Bell  V.  Gunn,  376. 
Bell  V.  Ohio  Life,  etc.  Co.,  400. 
Bell  V.  Romaine,  462. 
Bell  V.  Woodward,  132. 
Bellows  V.  Stone,  250. 
Belton  V.  Apperson,  246,  257. 
Benbow  v.  Davies,  235. 
Bender  v.  Terwilliger,  411. 
Bendey  v.  Townsend,  465. 
Benedict  v.  Auditor-General,   337. 
Benedict  v.  Thompson,  338,  359. 
Benedict  v.  T.  L.  V.  Land  &  Cattle 

Co.,  487,  498. 
Bengley  v.  Wheeler,  57. 
Bennett  v.  Bennett,  432. 
Bennett  v.  Brown,  327. 
Bennett  v.  Pierce,  204. 
Bennett  v.  Seligman,  399. 
Bennington  Iron  Co.  v.  Campbell, 

199. 
Benson  v.  Dempster,  151. 
Benson  v.  Vernon,  97. 
Benson  v.  Wolverton,  276. 
Bent  V.  Smith,  208. 
Bentley  v.  Cowman,  228. 
Bentley  v.  Phelps,  336. 


TABLE   OF    OASES    CITED. 


XXVll 


References  are  to  sections. 


Berger  v.  Jacobs,  55. 
Eergmann  v.  Salmon  et  al.,  46. 
Berks  Co.  v.  Jones,  362. 
Berliner,  etc.  Co.  v.  Seaman,  431. 
Bernard  v.  Toplitz,  250. 
Bernier  v.  Bernier,  67. 
Berryman  v.  Haden,  62. 
Berstein  v.  Hobelman,  473. 
Bertine  v.  Varian,  183. 
Berwind  v.  Canadian,  etc.  Ry.  Co., 

126. 
Betcher  v.  Insurance  Co.,  26. 
Bethel  v.  Pahquioque  Bank,  271, 
Bettes  V.  Dana,  281. 
Bettmann    v.    Harness,    399,    400, 

403. 
Beverly  v.  Brooks,  385. 
Bibber-White  Co.  v.  White  River 

Co.,  431. 
Bickerdike  v.  Allen,  86. 
Bickerstaff  v.  Doub,  492. 
Biddecomb  v.  Bond,  489. 
Bidder  v.  McLean,  121. 
Bidwell  V.  Garrison,  432. 
Bienenfield  v.  Fresno  Milling  Co., 

362. 
Bierne  v.  Ray,  238. 
Bigelow  V.  Ayrault,  487. 
Bigelow  V.  Booth,  478. 
Bigelow  V.  Bush,  466. 
Bigelow  V.  Sandford,  427. 
Biggerstaff  v.  Biggerstaff,  316. 
Bilbie  v.  Lumly,  418. 
Bill  V.  Schilling,  253. 
Billers  v.  Bowles,  97. 
Billing  V.  Flight,  135,  176. 
Billingslea  v.  Manear,  130. 
Billmyer  v.  Sherman,  493. 
Bilz  V.  Bilz,  310. 
Binney  v.  Turner,  132. 
Bird  V.  Bradburn,  431, 
Bird  V.Davis,  468. 
Bird's  Adm'r  v.  Inslee's  Ex'rs,  117. 
Birmingham  v.  Gallagher,  53. 
Birmingham  Ry.    Co.   v.   Traction 

Co.,  399. 
birmingham  Shoe  Co.  v,  Torrey, 

388. 


Bisel  V.  Tucker,  428. 

Bishop  V.  Waldron,  121. 

Bissell  V.  Kellogg,  425. 

Bitting  V.  Ten  Eyck,  385. 

Black  V.  Miller,  183,  184. 

Black  V.  Sweeting,  454, 

Blackerby  v.  Hoiton,  223. 

Blackett  v.  Laimbeer,  493. 

Biackwell  v.  Geering,  97. 

Blair  v.  Harrison,  253, 

Blair  v.  Hill,  440. 

Blair  v.  Reading,  225,  327. 

Blair  v.  Thompson,  408. 

Blaisdell,  Adm'r,  v.  Bowers,  207. 

Blake  v.  Askew,  360. 

Blake  v.  Blake,  500. 

Blake  v.  Dorgan,  456. 

Blake  v.  Garwood,  376, 

Blake  v.  McCosh,  483. 

Biakemore  v.  Blakemore,  416. 

Blanchard  v.  Williams,  150, 

Blanton  v.  Bostic,  445. 

Blease  v.  Garlington,  298. 

Bleeker  v.  Bingham,  496. 

Blish  V.  Colling,  497. 

Bliss  V.  French,  377,  379. 

Bliss  V.  Parks,  39,  108,  126. 

Blonheim  v.  Moore,  387,  390. 

Blood  V.  Manchester  Electric  Lt. 

Co.,  38. 
Blood  V.  Marcuse,  486. 
Bloodgood  V.  Clark,  388. 
Bloomer  v.  Henderson,  304. 
Blossom  v.  Railway  Co.,  473. 
Blount    V.    Societe    Anonyme    du 

Filtre,  401. 
Blue  V.  Watson,  376,  377,  380. 
Blunt  V.  Clithero,  384. 
Elythe  Co.  v.  Hinckley,  347,  355. 
Board     of     Supervisors     v.     Wal- 

bridge,  50. 
Bock  V.  Bock,  327. 
Bogardus  v.  Rosendale  Mfg.  Co., 

493. 
Bogardus  v.  Trinity  Church,  13i, 

140,  173,  203. 
Bogle  V.  Bogle,  212. 
Bolin  V.  St.  Louis,  etc.  Ry.  Co.,  377. 


2XV111 


TABLE    OF    CASES    CITED. 


References  are  to  sections. 


Boltoa  V.  Gardner,  162,  184,  185. 

Boltz  V.  Stoltz,  408. 

Bonaparte  v,  Camden,  etc.  Ry.  Co., 

398,  402. 
Bonham  v.  Weymouth,  411. 
Bonnard  v.  Ferryman,  399. 
Bonnell  v.  Lewis,  328. 
Boone  v.  Chiles,  168,  184. 
Boone,  etc.  Bank  v.  Byrum,  447. 
Booraem  v.  Railway  Co.,  399. 
Booten  v.  Scheffer,  431. 
Booth  V.  Clark,  384,  394. 
Booth  V.  Savings  Bank,  442. 
Borden  v.  Curtis,  434. 
Borders  v.  Murphy,  327. 
Bosley  v.  M'Kim,  398. 
Boston,  etc.  Ry.  Co.  v.  Parr,  130. 
Boston,  etc.    Ry.    Co.  v.  Sullivan, 

399. 
Bostwick  V.  Brinkerhoff,  318,  359. 
Bostwick  V.  Stiles,  477. 
Bouget  V.  Monroe,  459. 
Bowe  V.  Bowe,  468. 

Bowen  v.  Cross,  269. 

Bowen  v.  Gent,  493. 

Bower  v.  Bright,  267, 

Bower  V.  Idley,  256. 

Bower,  etc.  Co.  v.  Wells,  etc.  Co., 
204. 

Bowers  v.  Keescher,  61. 

Bowers  Dredging  Co.  v.  New  York 
Dredging  Co.,  399. 

Bowers,  etc.  Co.  v.  New  York,  etc. 
Co.,  400. 

Bowie  V.  Minter,  261,  280. 

Bowles  V.  McAllen,  52. 

Bowman  v.  Wilson,  490. 

Bows  V.  Jurat,  97. 

Boyce  v.  Grundy,  9. 

Boyd  v.  Hoyt,  61,  493, 

Boyden  v.  Reed,  345. 

Boynton  v.  Rawson,  499. 

Boynton  v.  Reese,  423. 

Bozarth  v.  Largent,  473. 

Brace  v.  Doble,  436. 

Brachet  v.  Graves,  369. 

Bracken  v.  Preston,  33. 

Bradfield  v.  Dewell,  399. 


Bradford  v.  Tenn.  etc.,  211. 
Bradish  v.  Grant,  256. 
Bradley  v.  Bradley,  48,  115. 
Bradley  v.  Converse,  40. 
Bradley  v.  Gilbert,  49,  57. 
Bradley  V.  Harkness,  453. 
Bradwell  v.  Weeks,  54,  93,  94. 
Brady  v.  Bay   State   Gas   Co.,   387, 

388. 
Brady  v.  Yost,  316. 
Bragg  V.  Lyon,  416. 
Brainard  v.  Buck,  257,  443. 
Erainard  v.  Feather,  447. 
Braman  v.  Wilkinson,  212, 
Branch  v.  Wilkins,  464,  466,  467. 
Brandev.  Gilchrist,  223. 
Brande  v.  Grace,  459. 
Brandon  Mfg.  Co.  v.  Prime,  215. 
Brandreth  v.  Lance,  399. 
Brasher's  Ex'rs  v.  Van  Cortlandt, 

218. 
Brass  v.  Rathbone,  398. 
Blasted  v.  Sutton,  388. 
Braxton  v.  Lee,  327. 
Breen  v.  Donnelly,  419. 
Brehm  v.  Sperry,  431. 
Brennan  v.  Hall,  376. 
Brereton  v.  Gamul,  180. 
Brevard  v.  Summar  et  al.,  285. 
Brewer  v.  Conger,  478. 
Brewer  v.  Dodge,  337. 
Brewer  v.  Holmes,  344. 
Brewster  v.  Cahill,  308. 
Brewster  v.  Power,  487. 
Briarfield,  etc.  Co.  v.  Foster,  387. 
Eriant  v.  Reed,  379. 
Bridesburg     Manufacturing     Co.'s 

Appeal,  370. 
Bridgford  v.  Barbour,  413. 
Bridgport,  etc.  Co.  v.  Meader,  463. 
Bridgport  Sav.  Bank  v.  Eldredge» 

477. 
Briggs  V.  Briggs,  68. 
Briggs  V.  Enslow,  237,  238. 
Briggs  V.  Hannowald,  465. 
Briggs  V.  Johnson,  425. 
Brine  v.  Insurance  Co.,  312. 
Brink  v.  Morton,  194. 


TABLE    OF   CASES    CITED. 


XXIX 


Eeferences  are  to  sections. 


Brinkerhoff  v.  Brown,  489,  493. 
Brinkerhoff  v.  Marvin,  482. 

Broad  v.  Broad,  414. 

Brock  V.  Rich,  489,  496.  497,  499. 

Brockway  v.  Carter,  464. 

Broder  v.  Conklin,  443. 

Eromberg   Bros.    v.    Heyer   Bros., 
229. 

Bronson  v.  La  Crosse  Ry.  Co.,  191, 
222. 

Bronson  v.  Vaughan,  301. 

Brook  V.  Widdicombe,  110. 

Brooke  v.  Hewitt,  108. 

Brooks  V.  Byam,  188. 

Brooks  V.  Lowenstein  et  al.,  31. 

Brooks  V.  Mead,  242. 

Broome  v.  New  York  Central  Co., 
401. 

Broughton  v.  Broughton,  400. 

Brown  v.  Aspen,  335. 

Brown  v.  Bank,  46. 

Brown  v.  Bates,  493. 

Brown  v.  Bedford,  etc.  Co.,  40. 

Brown  v.  Bronson,  408. 

Brown  v.  Brown,  50,  151. 

Brown  v.  Bulkley,  208. 

Brownv.  Elwell,  467. 

Brown  v.  Kalamazoo,  314. 

Brown  v.  Mortgage  Co.,  197. 

Brown  V.  Parker,  488. 

Brown  v.  South  Boston,  etc.  Bank, 

477. 
Brown  v.  Worster,  297,  298,  299. 
Brownell  v.  Curtis,  120,  141,  184, 

185,  496. 
Brownell  Co.  v.  Critchfield,  365. 
Browning  v.  Bettis,  393. 
Browning  v.  Watkins,  376. 
Brownsword  v.  Edwards,  109. 
Bruen  v.  Bruen,  141,  185. 
Brumley  v.  Westchester,  etc.  Co., 

191. 
Brundage  v.  Home,  etc.  Ass'n,  389. 
Brunner  v.  Bay  City,  60. 
Bryant  v.  Allen,  445. 
Bryant  v.  Russell,  53. 
Bryson  v.  McShane,  431. 
Buchanan  v.  Comstock,  263. 


Buchanan  v.  Greenway,  235. 

Buchanan  v.  Marsh,  489. 

Buck  V.  Buck,  433. 

Buck  V.  Colbath,  400. 

Buck  V.  Stuben,  471. 

Buckeye  Machine  Co.  v.  Doonan, 
etc.  Co.,  489. 

Buckingham  v.  Corning,  265. 

Buckley  v.  Boutellier,  194. 

Budd  V.  Camden,  etc.  Co.,  401 

Buettel  V.  Harmount,  476. 

Euettgenbach  v.  Gerbig,  401. 

Buffington  v.  Harvey,  343. 

Buford  V.  Rucker,  191. 

Bulkeley  v.  House,  445. 

Bulkley  v.  Van  Wick,  331. 

Bulkly  V.  Little,  392. 

Bull  V.  Brockway,  163. 

Bumpus  V.  Platner,  468. 

Bundy  v.  Town  of  Montecello,  440. 

Bunker  Hill,  etc.  Co.  v.  Shoshone, 
etc.  Co.,  134. 

Burbin  v.  Barber  &  Barney,  454. 

Burch  V.  Scott,  332. 

Burford  v.  Kersey,  221. 

Burgin  v.  Giberson,  249,  251. 

Eurhans  v.  School  District,  166. 

Burk  V.  Machine,  etc.  Co.,  117,  123. 

Burke  v.  Morris,  493. 

Burley  v.  Flint,  343. 

Burley  v.  White,  442. 

Burlington   Sav.   Bank  v.  City  of 

Clinton,  114. 
Burney  v.  Ball,  256. 
Burnham  v.  Bowen,  471. 
Burnham  v.  Tillery,  257,  304. 
Burns  v.  Fox,  434. 
Burns  v.  Lynde,  68. 
Burpee  v.  Smith,  120,  399. 
Burr  V.  Beers,  466. 
Burr  V.  Burton,  41. 
Burrall  v.  Rainetaux,  125. 
Burras  v.  Looker,  197. 
Burrell  v.  Hackiey,,  176. 
Burtas  v.  Tisdall,  500. 
Bush  V.  Wadsworth,  447,  448. 
Bussey  v.  Moragan,  420. 
Bustard  v.  Dabney,  Adm'r,  488. 


XXX 


TABLE    OF   OASES    CITED. 


References  are  to  sections. 


Buswell  V.  Lincks,  499. 
Butler  V.  Catling,  187. 
Butler  V.  Kenzie,  189. 
Butler  V.  Ladue,  462. 
Butterfield  v.  Beardsley,  322. 
Butterfield  v.  Graves,  428. 
Butterfield  v.  Radde,  2S8. 
Butterfield  v.  Sawyer,  418. 
Byers  v.  Coal  Co.,  246. 
Byers  v.  Sexton,  238. 
Byers  v.  Suggs,  ,88. 
Byram  v.  McDowell,  98. 
Byrd  v.  Rautman,  154. 
Byrd  v.  Sabin,  225. 
Byrd  v.  Turpin,  468. 
Cabeen  v.  Gordon.  245. 
Cable  V.  Ellis,  217. 
Cadotte  v.  Cadotte,  334. 
Caldwell  v.  Boyer,  264. 
Caldwell  v.  Ellebrecht,  462. 
Caldwell  v.  First  Nat.  Bank,  260. 
Caldwell  v.  Montgomery,  117. 
Calhoun  v.  Calhoun,  462,  467. 
California   v.    Southern   Pac.   etc. 
Co.,  49. 

Calkins  v.  Landis,  208. 

Callaghan  v.  Myers,  321,  400. 

Caller  v.  Shields,  343,  345. 

Calmes  v.  Ament,  344. 

Calverly  v.  Harper,  413. 

Camden,  etc.  R.  Co.  v.  Adams,  431. 

Cameron    v.    Groveland    Co.,    388, 
390. 

Camp  V.  Waring,  250. 

Campau  v.  Campau,  411. 

Campau  v.  Van  Dyke,  151. 

Campbell  v.  Ayers,  328. 

Campbell  v.  Clark,  457,  458. 

Campbell  v.  Crawford,  144. 

Campbell  v.  Dearborn,  475. 

Campbell  v.  Johnson,  64. 

Campbell  v.  Mesier,  330,  445. 

Campbell  v.  Shelden,  444. 

Campbell  v.  Shipman,  52. 

Campbell  v.  Wallace,  444. 

Campbell  v.  W'est,  464. 

Campbell  v.  Western  Blec.  Co.,  491. 

Campbell  v.  Worthington,  460. 


Canal  Com'rs  v.  Sanitary  District 

of  Chicago,  431. 
Canant  v.  Mappin,  213. 
Candler  v.  Petit,  263,  264. 
Canedy  v.  Marcy,  418. 
Caperton  v.  Forrey,  431. 
Capital     City     Gas     Co.     v.     Des 

Moines,  401. 
Carberry  v.  W.  Va.  etc.  Ry.  Co.,. 

426. 
Carey  v.  Hillhouse,  256. 
Carey  v.  Hoxey,  327. 
Carey  v.  Smith,  247. 
Carger  v.  Fee,  428. 
Carleton  v.  Rugg,  67. 
Carley  v.  Fox,  466. 
Carlton  v.  Hullett,  468. 
Carlton  v.  Superior  Court,  362. 
Carpenter  v.  Benson,  197. 
Carpenter  v.  Carpenter,  151. 
Carpenter  v.  Gray,  285. 
Carpenter  v.  Mutual  Life  Ins.  Co., 

436. 
Carpenter  v.  Osborn,  490. 
Carpenter  v.  Plagge,  481. 
Carpenter  v.  Reynolds,  361. 
Carney  v.  Carney,  130. 
Carney  v.  Hadley,  399. 
Carr  v.  Carr,  460. 
Carr  v.  United  States,  58. 
Carrell  v.  Potter,  331. 
Carriger  v.  Kennedy,  362. 
Carroll  v.  Ballance,  461. 
Carroll  v.  Farmers',  etc.  Bank,  399,. 

400. 
Carroll  V.  Potter,  136,  183. 
Carroll  V.  Rice,  420. 
Carroll  v.  Richardson,  213. 
Carter  v.  Couch,  154. 
Carter  v.  Leonard.  418. 
Carter  v.  Pritchard,  172. 
Carter  v.  Torrance,  104. 
Cartersville,   etc.   Co.   v.    City   of 

Cartersville,  401. 
Caruthers  v.  Hall,  470. 
Case  V.  Beauregard,  318. 
Case  V.  Minot,  146,  459. 
Casperson  v.  Casperson,  9. 


TABLE    OF    CASES    CITED. 


XXXI 


References  are  to  sections. 


Cass  V.  Sutherland,  392. 
Casserly  v.  Witherbee,  477. 
Cassidy  v.  Shimmin,  49. 
Cassilear  v.  Simons,  396. 
Castle  V.  Bader,  38. 
Castleman  v.  Berry  et  al.,  52. 
Caswell  V.  Caswell,  345. 
Cates  V.  Allen,  314. 
Catlin  V.  Doughty,  494. 
Catton  V.  Carlisle,  281. 
Cavender  v.  Cavender,  239. 
C,  B.  &  Q.  Ry.  Co.  V.  Burlington, 

etc.  Ry.  Co.,  401. 
Cecil  V.  Clark,  411. 
Center  Creek,  etc.  Co.  v.  Lindsay, 

419. 
Central  Nat.  Bank  v.  Graham,  498. 
Central  Trust  Co.  v.  Moran,  401. 
Central  Trust  Co.  v.  West,  260. 
Chace  v.  Trafford,  163. 
Chadbourne  v.  Coe,  49. 
Chadbourne  v.  Stockton,  etc.  Soc, 

36. 
Chadwick  v.  Broadwood,  141. 
Chadwick  v.  Chadwick,  442. 
Chaffee  v.  Jones,  445. 
Chalfants  v.  Martin,  237. 
Chamberlain  v.  Chamberlain,  475. 
Chamberlain  V.  Lyell,  468. 
Champion  v.  Brown,  433. 
Champlin  v.  Stoddard,  400. 
Champlin  et  al.  v.  Champlin  et  al., 

53,  137. 
Chancellor  v.  Spencer,  350. 
Chandler  v.  McKinney,  102,  331. 
Chandler  V.  Pettit,  263,  264. 
Chanler  v.  Richardson,  411. 
Chapel  V.  Hull,  9. 
Chapin  v.  Circuit  Judge,  464. 
Chapin  y.  James,  400. 
Chapman  v.  Chunn,  114. 
Chapman  v.  City  of  Hartford,  425. 
Chapman  v.  Dunwell,  421. 
Chapman  v.  Fields,  256. 
Chapman  v.  Publishing  Co.,  67. 
Chappell   Chemical   Co.   v.   Mines 

Co.,  2G0. 
Chase  v.  Boughton,  327. 


Chase  v.  Cannon  et  al.,  39. 
Chase  v.  Chase,  154. 
Chase  v.  Seajles,  60,  61. 
Chattanooga    v.    Livingston,   194, 

258. 
Cheeney  v.  Bilby,  433. 
Cheesebrough  v.  Millard,  483. 
Cheney  v.  Harding,  88. 
Chesapeake,  etc.  Ry.   Co.  v.   Pat- 
ten, 406. 
Chester  v.  King,  466. 
Chicago,  etc.  v.  Connecticut,  etc. 

Ins.  Co.,  221. 
Chicago,  etc.  Ry.  Co.  v.  Bank,  250, 

256. 
Chicago,  etc.  Ry.  Co.  v.  Burling- 
ton, etc.  Ry.  Co.,  401. 
Chicago,  etc.  Ry.  Co.  v.  Dey,  399. 
Chicago,  etc.  Ry.  Co.  v.  Fosdick, 

469. 
Chicago,  etc.  Ry.  Co.  v.  N.  Y.,  L. 

E.  etc.  R.  Co.,  401. 
Chicago,  St.  L.  etc.  Co.  v.  Packett, 

395. 
Chicago,  St.  L.  etc.  Co.  v.  Pullman 

Southern  Car  Co.,  400. 
Child  V.  New  York,  etc.  Ry.  Co., 

450. 
Childs  V.  Emerson,  55. 
Childers  v.  Loudin,  416. 
Childers  v.  West,  344. 
Chipman  v.  City  of  Hartford,  144. 
Chipman  v.  Morrill,  445. 
Chipman  v.  Railway  Co.,  102. 
Chipman  V.  Sabatton,  393. 
Chisholm  v.  Johnson,  180. 
Chouteau  et  al.  v.  Rice  et  al.,  237. 
Chowick  V.  Dimes,  276. 
Christian  v.  Vance,  399. 
Christie  v.  Board   of   Trade,   etc., 

400. 
Christie  v.  Herrick,  64. 
Church  V.  Hatch,  250. 
Church  V.  Holcomb,  246,  250,  304. 
Church  V.  Kelsey,  314. 
Church  V.  Pennington,  300. 
Cicotte  V.  Gagnier,  304. 
Cicotte  V.  Stebbins,  438. 


xxxu 


TABLE    OF    CASES    CITED. 


References  are 

Cincinnati,  etc.  Ry.  Co.  v.  Sloan, 

385. 
City  of  Seattle  v.  McDonald,  439. 
Citizens'    Bank    v.    Los   Angeles, 

etc.  Co.,  469. 
Citizens'  Coach  Co.  v.  The  Cam- 
den, etc.  Co.,  401,  402,  403. 
Citizens',  etc.  Co.  v.  Strauss,  477. 
Citizens'     Sav.    Bank    v.    Circuit 

Judge,  123. 
Citizens'  Sav.  Bank  v.  Foster,  447. 
City  Bank  v.  Bangs,  382. 
City  of  Detroit  v.  Detroit  Ry.  Co., 

223. 
City  of  Evansville  v.  Frazer,  26. 
City  of  Georgetown  v.  Alexandria 

Canal  Co.,  400. 
City  of  London  v.  Nash,  430. 
City  of  New  Orleans  v.  Fisher,   491. 
City  of  Newton  v.  Levis,  401. 
City   of  Oconto   v.   National,   etc. 

Works,  498. 
Claflin  V.  McDermott,  489. 
Clapp  V.  Cooper,  447. 
Ciapp  V.  Galloway,  408. 
Clapp  V.  Thaxter,  328,  332,  341. 
Clapper  v.  House,  332. 
Clarendon  v.  Hornby,  416. 
Clark  V.  Bell,  328. 
Clark  V.  Clark,  218,  223. 
Clark  V.  Coal,  etc.  Co.,  489. 
Clark  V.  Congregational      Church, 

250. 
Clark  V.  Davis,  495,  496. 
Clark  V.  Fosdick,  441, 
Clark  V.  Hogle,  98. 
Clark  V.  Jones,  183. 
Clark  V.  Killian,  343. 
Clark  v.McGhee,  392. 
Clark  v.  Phelps,  185. 
Clark  V.  Reyburn,  475. 
Clark  V.  Saginaw  City  Bank,  185. 
Clark's   Ex'rs   v.   Van   Riemsdyk, 

207. 
Clarke  v.  Land  Co.,  109. 
Clarke  V.  Mathewson,  271. 
Clarke  v.  White,  207,  208. 
Ciarkson  v.  De  Peyster,  489,  4^1. 


to  sections. 

Clason  V.  Corley,  103. 

Claude  v.  Handy,  413. 

Clay  V.  Hammond,  423. 

Clayton  v.  Mitchell,  362. 

Clayton  v.  Whittiker,  462. 

Claxton  V.  Claxton,  54. 

Cleland  v.  Campbell  et  al.,  9. 

Cleland  v.  Cas.<;rain,  39,  428. 

Cleland  v.  Clark,  150. 

Clews  v.  Jamieson,  439. 

Clifford  V.  Coleman,  249. 

Clifford  V.  Heald,  117. 

Clinnin  v.  Rauch,  327. 

Cloud  v.  Greasley,  117. 

Cloyd  V.  Trotter,  86. 

Club  V.  Clough,  428. 

Clyde  V.  Railway  Co.,  294,  295. 

C,  M.  etc.  Ry.  Co.  v.  Packet  Co., 

395. 
Coach  V.  Adsit,  237. 
Coach  V.  Circuit  Judge,  223,  225. 
Coatesville,   etc.   Co.    v.   Uwchlan, 

etc.  Co.,  400. 
Coats  v.  Woodworth,  439. 
Cobb  V.  Rice,  377.  379. 
Cochran  v.  Cochran,  501. 
Cochran  v.  Couper,  350. 
Cochran  v.  McCleary,  400. 
Cochrane  v.  Adams,  112. 
Cock  V.  Hobb,  346. 
Cocke  V.  Minor,  308. 
Cocks  V.  Verney,  492. 
Coddington  v.  Tappan,  388. 
Codrington  v.  Houlditch,  281. 
Ccdwise  v.  Taylor,  328. 
Coe  V.  Louisville,  etc.  Ry.  Co.,  401. 
Coeur  d'  Alene,  etc.  Co.  v.  Miners' 

Union,  400. 
Coffey  V.  Dubois,  362. 
Coffin  V.  Lesster,  85. 
Cogswell  V.  Armstrong,  382. 
Cohen  v.  Meyers,  390. 
Cohen  v.  Sharp,  425. 
Cohens  v.  Virginia,  58. 
Coiron  v.  Millaudon,  49. 
Colclough  V.  Evans,  127. 
Cole,  etc.  M.  Co.  v.  Virginia,  etc. 

Co.,  401. 


TABLE    OF    CASES    CITED. 


xxxm 


References  are  to  sections. 


Cole  V.  Johnson,  327. 
Cole  V.  Malcolm,  485. 
Coles  V.  Forrest,  465. 
Coleman  v.  Butt,  130. 
Coleman  v.  Livingston,  288. 
Coleman  v.  Martin,  63. 
Coleman  y.  San  Rafael,  427. 
Colgate  V.  Compagnie  Francaise, 

197. 
Collins  V.  Carlyle,  467. 
Collins  Mfg.  Co.  v.  Marcy,  400. 
Colly er  v.  Cook,  468. 
Colman  v.  Railway  Co.,  400. 
Coldiron  v.  Ashville,  etc.  Co.,  208. 
Colonial,  etc.  Co.  v.   Hutchinson, 

etc.  Co.,  4G6. 
Colton  V.  Ross,  40,  46. 
Colton  V.  Rupert,  85. 
Columbia  College  v.  Lynch,  411. 
Columbia  Nat.   Bank  v.   Baldwin, 

500. 
Columbian  Athletic  Club  v.  State 

of  Indiana  ex  rel.,  400. 
Columbus,  etc.  Co.  Appeals,  322. 
Colville  V.  Colville,  351. 
Commercial    Assur.    Co.    v.    New 

Jersey  Rubber  Co.,  249,  260. 
Commercial,  etc.  Co.  v.  Everhart, 

83. 
Commonwealth  v.  Cullen,  207. 
Commonwealth   v.   Insurance  Co., 

394. 
Commonwealth  v.  Reading  Bank, 

418. 
Cone  V.  Tuscaloosa  Mfg.  Co.,  81. 
Congdon  v.  Ckhoon,  439. 
Ccnn  V.  Penn,  327. 
Connally  v.  Peck,  250. 
Connecticut  Ins.  Co.  v.  Smith,  252. 
Connell  v.  Reed,  400. 
Conner  v.  Welsh,  449. 
Conover  v.  Jeffrey,  490. 
Conroy  v.  Woods,  492. 
Consolidated,   etc.   Co.   v.   City  of 

Santiago,  465. 
Consolidated,  etc.   Co.  v.   Staples, 

379. 
Contee  v.  Lyons,  343. 


Continental  Life  Ins.  Co.  v  Webb, 
215. 

Conway  v.  Township  Board,  402. 

Conway  v.  Wilson,  285. 

Conyers  v.  Mericles,  463. 

Coogan  V.  McCarran,  211. 

Cook  V.  Bartholomew,  460. 

Cook  V.  City  Nat.  Bank,  396. 

Cook  V.  Cook,  166. 

Cook  V.  Dews,  189. 

Cook  V.  Finch,  100. 

Cook  V.  French,  338. 

Cook  V.  Mancius,  146. 

Cook  V.  Wheeler,  213. 

Cooke  V.  Hall,  151. 

Cooke  V.  Husband,  418. 

Cooley  V.  Harris,  218. 

Coombs  V.  Carr,  477. 

Coon  V.  Cronk,  365. 

Cooney  v.  Cooney,  392. 

Cooper  V.  Bigly,  474,  482. 

Cooper  V.  Gum,  250. 

Cooper  V.  Reynolds,  86. 

Cooper  V.  Smith,  467. 

Cooper  V.  Ulmann,  465. 

Coosaw  Mining  Co.  v.  Farmers' 
Mining  Co.,  298. 

Copeland  v.  Bruning,  355. 

Copeland  v.  McCue,  201. 

Copper  V.  Wells,  434. 

Corbin  v.  Patton,  207. 

Corbus  V.  Alaska,  etc.  Co.,  31. 

Corinth  v.  Lock,  399. 

Cork  V.  Wilcox,  165. 

Cornelious  v.  Halsey,  467. 

Corning  v.  Burton,  466. 

Cornwell  Mfg.  Co.  v.  Swift,  39,  459. 

Corporation,  etc.  v.  Elden,  301. 

Corrigan  v.  Foster,  445. 

Cortelyou  v.  Jones,  465. 

Coryell  v.  Klehm,  117. 

Cottle  V.  Leitch,  458. 

Coudert  v.  Coudert,  447. 

County  Bank  v.  Goldtree,  473. 

County  Com'rs  v.  City  of  Fred- 
erick, 9. 

County  of  Cook  v.  Great  Western 
Ry.  Co.,  238. 


xxxiv 


TABLE    OF    OASES    CITED. 


References  are  to  sections. 


County,  etc.  v.  Bridge  Co.,  423. 
Courtland,  etc.  Co.  v.  Grand  Trunk 

Ry.  Co.,  429. 
Covell  V.  Cole,  101,  304. 
Cowell  V.  Springs  Co.,  400. 
Cowles  V.  Whitman,  400. 
Cowman  v.  Lovett,  125. 
Cox  V.  Bank,  etc.,  353. 
Cox  V.  Douglass,  399. 
Cox  V.  Leviston,  219,  223. 
Cox  V.  Volkert,  385. 
Cox  V.  Westcoat,  250. 
Cox  V.  Wheeler,  447, 
Cozine  v.  Graham,  117,  135,  184. 
Craft  V.  Thompson,  110. 
Craig  V.  Jennings,  441. 
Craig  V.  Miller,  64. 
Craig  V.  Phillips,  370. 
Cramer  v.  Her,  392. 
Crane  v.  Deming,  130. 
Crane  v.  McDonald,  372, 
Crass   V.   Memphis,   etc.   Ry.    Co., 

370,  380, 
Crawford  v.  Edwards,  466. 

Crawford  V.  Fisher,  373, 

Crawford  v.  Foster,  85. 

Crawford  v.  Jones,  445. 

Crawford  v.  Osmun,  322. 

Crawford  v.  Paine,  40G. 

Crawford  v.  Tyrrell,  400, 

Crawshay  v.  Thornton,  372, 

Craythorne  v.  Swinburne,  445, 

Cresap  v.  Kemble,  399. 

Crescent    Mining    Co.     v.     Silver 
King.  406. 

Crim  V.  Walker,  489. 

Crippendorf  v.  Hyde,  63,  215, 

Crocker  v.  Dillon,  132. 

Crocker  v,  Higgins,  48, 

Crocker  v.  Huntzicker,  492, 

Crogan  v.  Schiele,  111, 

Croghan  v.  Minor,  468. 

Crombie  v.  Order  of  Solon,  390. 

Crompton  v.  Bearcroft,  388. 

Cross  V,  De  Valle,  217. 

Crowell  V.  Botsford,  74. 

Crowfoot  V.  Mander,  271. 

Crook  V.  Andrews,  428. 


Crumrine  v.  Crumrine,  439. 
Cudebac  v.  Strong,  86. 
Cullen  V.  O'Hara,  Ci, 
CuUison  V.  Bossom,  130, 
Cumberland,  etc.  Co.  v.  Glass,  etc. 

Ass'n,  400. 
Cunningham  v.  Freeborn,  200,  209, 
Cunningham  v.  Pell,  53, 
Curley  v.  Tomlinson,  288. 
Curling  v.  Townsend,  388. 
Curow  V.  Mowatt,  64. 
Curran  v.  Campion,  114. 
Curry  v.  Glass,  492. 
Curtis  V,  Albee,  418. 
Curtis  V.  Masten,  183. 
Curtis  V.  Smith,  444. 
Curtis  V.  Tyler,  466. 
Cushman  v,  Bonfield,  327. 
Cushney  v,  Henry,  437, 

Cutter  V.  Iowa  Water  Co.,  114. 

Cuyler  v.  Ensworth,  445. 

Dacosta  v.  Dibble,  146,  180. 

Daingerfield  v.  Smith,  102. 

Daken  v.  Union  Pac.  Ry.  Co.,  185. 

Dakin  v.  Watson,  375. 

Dale  V.  Turner,  426, 

Daley  v.  Smith,  431. 

Dalhoff  V.  Coffman,  296. 

Dall  V.  Confidence  Mining  Co.,  410. 

Dameron  v.  Jameson,  412. 

Damouth  v.  Klock,  359. 

Dandridge  v.  Curtis,  64. 

Danforth  v.  Smith,  408. 

Daniel  v.  Palmer,  150, 

Daniels  v.  Railway  Co.,  86. 

Darling  v.  Hurst,  302. 

Darling  v.  Jewell,  365. 

Darlington's  Appeal,  246. 

Dary  v.  Kane,  464. 

D.   A.   Tompkins   Co.   v.   Catawba^ 
Mills,  388. 

David  V.  Davis,  256. 

David  V.  Shephard,  40. 

Davidson  v.  Murphy,  15. 

Davidson  v.  Thompson,   413. 

Davidson's  Ex'rs  v.  Johnson,  146, 
147,  166,  176. 

Davies  v.  Davies,  330, 


TABLE    OF   OASES    CITED. 


XXXV 


References  are  to  sections. 


Davis  V.  American,  etc.  Union,  222. 

Davis  V.  City  of  Boston,  425. 

Davis  V.  Coburn,  439. 

Davis  V.  Cooli,  212. 

Davis  V.  Davis,  67,  98,  380. 

Davis  V.  Dean,  489. 

Davis  V.  Gray,  385,  394. 

Davis  V.  Hone,  430. 

Davis  V.  Mapes,  183. 

Davis  V.  McCullough,  442. 

Davis  V.  New  York,  49. 

Davis  V.  Peabody,  49. 

Davis  V.  Phillips,  421. 

Davis  V.  Richmond,  86. 

Davis  V.  Speiden,  346. 

Davis  V.  Sullivan,  295. 

Davis  V.  Walton,  500. 

Davoue  v.  Fanning,  160. 

Dawson  v.  Overmyer,  475. 

Dawson  v.  Sims,  492. 

Day  V.  Dunham,  328. 

Day  V.  Hale,  328. 

Day  V.  Wetherby,  49. 

Dayton  v.  Dayton,  327. 

Dean  v.  Mumford,  438. 

Dear  v.  Swoi-der,  215. 

Dearth  v.  National  Bank,  249. 

Debell  v.  Foxworthy,  350. 

De  Castro  v.  Compagnie,  etc.,  81. 

Decker  v.  Decker,  490. 

De  Ford  v.  Hyde,  36. 

Degener  v.  Stiles,  471. 

De  Godey  v.  Godey,  406. 

Degroot  v.  Jay,  394. 

Deitzler  v.  Mishler,  447. 

Delacey  v.  Hurst,  246. 

De  La  Cuesta  v.  Calkins,  363. 

Delany  v.  Mansfield,  384. 

Delaware,     etc.     Co.     v.     Central 

Stockyard  Co.,  401. 
Delaware,  etc.  Co.  v.  Gillett,  419. 
Delehanty  v.  Warner,  400. 
Deloraine  v.  Browne,  151. 
De  Louis  v.  Meek,  130. 
Demaray  v.  Little  et  al.,  473. 
Demattos  v.  Gibson,  431. 
DeMontmorency  v.  Devereaux,  164. 
Denison  v.  Bassford,  192. 


Dennis  v.  Hemingway,  463,  472. 
Dennison  v.  Crofts,  88. 
Denny  v.  Ashley,  86. 
Denny  v.  Denny,  50. 
Densmore  v.  Savage,  61,  ill. 
Dering  v.  Winchelsea,  445. 
Deseret  National  Bank  v.  Bunton, 

418. 
Des  Moines  Nat.  Bank  v.  Harding, 

483. 
Desot  V.  Ross,  447. 
Detroit  v.  Circuit  Judge,  406. 
Detroit  v.  Martin,  425. 
Detroit  Savings  Bank  v.  Truisdail, 

336,  339,  482. 
Detroit,   etc.   Ry.   Co.  v.  Common 

Council,  26. 
Detroit,  etc.  Co.  v.  Renz,  100,  329, 

331. 
Deutsch   Roemisch    Katholischer, 

etc.  V.  Lartz,  83. 
Devereaux  v.  Cooper,  183. 
Devol  V.  Mcintosh,  400. 
Dewar  v.  Spence,  416. 
Dewey  Hotel  Co.  v.  United  States, 

etc.  Co.,  399. 
Dewick  v.  Dodson,  399. 
De  Winton  v.  Mayor,  394. 
Dewolf  V.  Long,  238. 
Dexter  v.  Arnold,  348,  356. 
Dexter  v.  Gordon,  301. 
Dexter  v.  Ohlander,  207. 
Dias  V.  Bouchaud,  499. 
Dias  V.  Merle,  127. 
Dickerman  v.  Northern  Trust  Co., 

462. 
Dickerson  v.  Hodges,  233. 
Diefenthaler  v.  Hall,  302. 
Dietzler  v.  Mishler,  447. 
Dill  V.  Shahan,  213. 
Dillard  v.  Dillard,  39,  114. 
Dillon  V.  Barnard,  110. 
Dills  V.  Doebler,  400. 
Dimond  v.  Rogers,  487. 
Dinsmore  v.  Adams,  335. 
Dinsmore  v.  Grossman,  68. 
Dix  V.  Briggs,  490,  493. 
Dodd  V.  Flavell,  405. 


XXXVl 


TABLE    OF    OASES    CITED. 


References  are  to  sections. 


Dodd  V.  Winn,  445. 

Dodge  V.  Insurance  Co.,  151. 

Doggett  V.  Emerson,  336. 

Doggett  V.  Hart,  442. 

Doherty  v.  Holliday,  493. 

Donaldson  v.  Wright,  110. 

Donnelly  v.  Ewarts,  253. 

Donnor  v.  Quartermas,  410. 

Donohue  v.  Ladd,  429. 

Donovan  v.  Finn,  488. 

Doolittle  V.  Gookin,  308. 

Doonan  v.  Glynn,  250. 

Door  V.  National  Bank,  314. 

Door  V.  Peters,  447. 

Dormer  v.  Fortesque,  108. 

Dorn  V.  Colt,  465. 

Dorn  V.  Farr,  322. 

Dorn  V.  Fox,  373. 

Dorsheimer  v.  Rorback,  334. 

Doty  V.  Irwin,  498. 

Dougherty  v.  Randall,  465. 

Douglas  V.  Phenix,  110. 

Douglas  V.  Sherman,  274,  277,  280. 

Douglas  V.  Wiggans,  400. 

Douglass  V.  Boardman,  60. 

Douglass  V.  County  of  Pike,  312. 

Douglass  V.  Martin,  439. 

Dow  V.  Jewell,  442. 

Dow  V.  Northern  Ry.  Co.,  400. 

Downer  v.  Howard,  330. 

Dows  V.  McMichael,  140. 

Draper  v.  Davis,  400. 

Drew  V.  Beard,  246. 

Drew  V.  Dyer,  490. 

Driggs  V.  Garretson,  164. 

Droste  v.  Hall,  131,  132. 

Drosten  v.  Mueller,  365. 

Driver  v.  White,  189. 

Du  Bois  V.  Union  Dime  Sav.  Inst., 

370. 
Dubs  V.  Dubs,  408. 
Duck  V.  Wilson,  463. 
Duckett  V.  Bank,  440. 
Ducktown,  etc.  Co.  v.  Barnes,  11. 
Dudley  v.  Dudley,  316. 
Dudley  v.  Eastman,  310. 
Duff  V.  Fisher,  434. 
Dugeon  v.  Watson,  145. 


Dukes  V.  Bush,  431. 

Dull  V.  Blackman,  86. 

Dummer  v.  Chippenham,  191. 

Dunbar  v.  Harrison,  487. 

Dunfee  v.  Childs,  355. 

Dunham  v.  Jackson,  207. 

Dunlay  v.  Dunseth,  482. 

Dunn.  V.  Allen,  278. 

Dunn  V.  Buckley,  483. 

Dunn  V.  Clarke,  224. 

Dunn  V.  Dunn,  88. 

Dunn  V.  Keegin,  337. 

Dunton  v.  McCook,  460. 

Dunton  v.  Sharp,  462. 

Durfee  v.  McClure,  209. 

Durant  v.  Essex,  318. 

Durham  v.  Stephenson,  126. 

Durham  v.  Walker,  328. 

Dutton  V.  Thomas,  498. 

Duvale  v.  Duvale,  431. 

Drury  v.  Roberts,  390. 

Dwen  V.  Blake,  477. 

Dwight  v.  Humphreys,  122. 

D"Wolf  V.  Pratt,  36. 

Dyer  v.  Dean,  238. 

Dyer  v.  Martin,  187. 

Dyer  V.  Vinton,  413. 

Dzyalnski  v.  Bank,  124. 

Eager  v.  Price  et  al.,  264. 

Eagle  Fire  Ins.  Co.  v.  Cammet  et 

al..  64. 
Eakin  v.  Hawkins,  126. 
Eakin  v.  Herbert,  473. 
Fames  v.  Manley,  151. 
Eameston  v.  Lyde,  493. 
Earl  of  Derby  v.  Duke  of  Athol, 

144. 
Earl    of    Portsmouth   v.   Fellows. 

41. 
Earl  of  Suffolk  v.  Green,  108. 
Earle  v.  Circuit  Judge,  489. 
Earle  v.  Grover,  489. 
Earle  v.  McCartney,  316. 
Earle  v.  Turton,  413. 
Earll  V.  Metropolitan,  etc.,  180. 
Eastman  v.  Bank,  60. 
Eastman  v.  Batchelder,  280. 
Eastman  v.  Savings  Bank,  114. 


TABLE    OF   CASES    CITED. 


XXXVU 


References  are  to  sections. 


East  Saginaw  Ry.  Co.  v.  Wildman, 
399. 

East  St.  Louis,  etc.  Ry.  Co.  v. 
People,  38. 

East  Tenn.  etc.  Co.  v.  Southern, 
etc.  Co.,  362. 

Eastern  Trust  Co.  v.  American  Ice 
Co.,  471. 

Eaton  V.  Dickinson,  343. 

Eaton  V.  Eaton,  98,  331,  493. 

Eaton  V.  Truesdail,  463. 

Eaton  V.  Trowbi'idge,  425. 

Eberle  v.  Heaton,  39. 

Eberts  v.  Fisher,  413. 

Eberts  v.  Girding,  447. 

Eckert  v.  Bauert,  224. 

Ecton  V.  Lexington,  etc.  Ry.  Co., 
431. 

Edgell  V.  Felder,  84,  91. 

Edgell  V.  Smith,  423. 

Edison  V.  Electric  Light,  etc.  Co., 
271. 

Edsell  V.  Briggs,  9. 

Edsell  V.  Nevins,  150. 

Edson  V.  McGraw,  363. 

Edwards  v.  Allouez  Mining  Co., 
398,  399. 

Edwards  v.  Bay  State  Gas  Co.,  31. 

Edwards  v.  Hulbert,   120. 

Edwards  v.  Remington,  458. 

Eidermiller  Ice  Co.  v.  Guthrie,  399. 

Einstein  v.  Schnebly,  35,  455. 

Eisel  V.  Haves,  400. 

Elam  V.  Haden,  420. 

Eldred  v.  American,  etc.  Co.,  106. 

Electric  Co.  v.  Le  Grande,  etc. 
Co.,  465. 

Electric  Lighting,  etc.  Co.  v.  Mo- 
bile, etc.  Ry.  Co.,  399. 

Elk  Fork,  etc.  Co.  t.  Foster,  392. 

Elkhart  Nat.  Bank  v.  Northwest- 
ern, etc.  Co.,  493. 

Ellingwood  v.  Stevenson,  286. 

Elliott  V.  Balcom  et  al.,  348. 

Elliott  V.  Pell,  327. 

Elliott  V.  Trahern,  237. 

EUis  V.  Fairbanks,  462. 

Ellis  V.  Land,  etc.  Co.,  9. 


Ellis  V.  Saloman,  431. 
Elliston  V.  Morrison,  223. 
Ellsworth  V.  Curtis,  229,  230. 
Elmendorf  v.  Taylor  et  al.,  50, 169. 
Elwell  V.  Sylvester,  350. 
Elzas  V.  Elzas,  345. 
Embury  v.  Klenn,  338. 
Emeric  v.  Alvarado,  359. 
Emerson  v.  Township  of  Walker, 

33. 
Emerson  v.  Western    Union,    etc. 

Co.,  144. 
Empire  Distilling  Co.  v.  M'Nulta, 

295. 
Enfield,    etc.    Co.    v.    Connecticut 

River  Co.,  398. 
Englar  v.  Offutt,  Trustee,  440. 
Engle  v.  White,  431. 
English  V.  The  People,  390. 
Enoe  V.  Christ,  401. 
Ensworth  v.  Lambert,  263,  264 
Equitable,  etc.  Soc.  v.  Laird,  256. 
Equitable    Guaranty,    etc.    Co.    v. 

Donahoe,  400. 
Equitable  Life  Ins.  Co.  v.  Gleason, 

464. 
Equitable  Life,  etc.  Soc.  v.  Patter- 
son, 123. 
Ernst  v.  Almira,  etc.  Co.,  130. 
Ernst  v.  Harris,  455. 
Ernst  v.  Merritt,  388,  487. 
Erwin  v.  Parham,  431. 
Eslava  v.  Mazange,  285. 
Essex  Paper  Co.  v.  Greacen  et  al., 

121. 
Estes  V.  Bridgforth,  77. 
Eureka  v.  Bresnahan,  83. 
Eureka,  etc.  Co.  v.  California,  etc. 

Ry.  Co.,  399. 
Eustis  V.  Bolles,  362. 
Eustis  V.  Holmes,  289. 
Evans  v.  Baker,  462. 
Evans  v.  Dunn,  324. 
Evans  v.  English,  468. 
Evans  v.  Fisher,  483. 
Evans  v.  Grand  Rapids,  etc.  Co.,  31. 
Evans  v.  Kelly,  327,  459. 
Evans  v.  Laughton,  492. 


XXXVlll 


TABLE   OF   OASES   CITED. 


Beferences  are  to  sections. 


Evans  v.  Trust  Co.,  476. 

Evarts  v.  Becker,  337. 

Eveland  v.  Stephenson,  67,  117. 

Everett  t.  Drew,  110. 

Everton  v.  Booth,  482,  485. 

Evitt  V.  Price,  400,  401. 

Excelsior,  etc.  Co.  v.  Brown,  400. 

Expard  v.  Vandermissen,  344. 

Ex  parte  Boyd,  196. 

Ex  parte  Crouch,  400. 

Ex  parte  Jordan,  295,  444. 

Ex  parte  Norton,  359. 

Ex  parte  Railway  Co.,  227. 

Ezzell  V.  Watson,  481. 

Faher  v.  Matz,  489. 

Faine  v.  Brown,  430. 

Fairbank  v.  Cudworth,  471. 

Fairbank  v.  Leary,  108. 

Fairbanks  v.  Belknap,  488. 

Fairbairn  v.  Middlemiss,  208. 

Fairfield,  etc.  Co.  v.  Bradbury,  401. 

Fairman  v.  Farmer,  463. 

Fallowes  v.  Williamson,  276. 

Farley  v.  Blood,  373. 

Farley  V.  Kittson,  133,  135,  176. 

Farmers',   etc.    Bank   v.   Bronson, 

468. 
Farmers',   etc.    Bank   v.    Fidelity, 

etc.  Co.,  447. 
Farmers',    etc.    Bank    v.    Griffith, 

207. 
Farmers',  etc.  Bank  v.  Little,  271. 
Farmers',  etc.  Bank  v.  Polk,  50. 
Farmers',  etc.  Co.  v.  Railway  Co., 

294. 
Famham  v.  Brooks,  151. 
Farnham  v.  Campbell,  425,  487. 
Famham  v.  Clements,  117. 
Farrand  v.  Long,  197. 
Farrar  v.  Powell,  39,  114. 
Farrell  v.  Parlier,  461. 
Farrer  v.  United  States,  92. 
Farson  v.  Sioux  City,  115. 
Farwell  V.  Johnston,  121,  434. 
Farwell  y.  Tillson,  155. 
Faulder  v.  Stuart,  183. 
Faulkner  v.  Davis,  50. 
Faulkner  v.  Thompson,  117. 


Faxton  v.  Faxton,  462. 
Fayerweather  v.  Ritch,  297. 
Feller  v.  Winchester,  194. 
Fellows  V.  Fellows,  476,  493. 
Female  Ass'n  v.  Beakman,  441. 
Fenn  v.  Craig,  50. 
Fenton  v.  Miller,  416. 
Fenton  v.  Steere,  411. 
Fenton  v.  Wendell,  416. 
Ferguson  v.  O'Harra,  173,  185. 
Ferris  v.  American    Brewing   Co., 

400. 
Ferris  v.  Hogland,  256. 
Fesler  v.  Brayton,  399. 
Fidelity  Trust,  etc.  Co.  v.  Mobile, 

etc.  Ry.  Co.,  224. 
Field  V.  Maghee,  52,  145. 
Field  V.  Middlesex     Banking     Co., 

246. 
Field  V.  Sands,  499. 
Field  V.  Schiefferlin,  217,  221. 
Field  V.  Thistle,  466. 
Field  V.  Western  Springs,  399. 
Fields  V.  Helmes,  40,  475. 
Fight  v.  Holt,  416. 
Finch  et  al.  v.  Martin  et  al.,  235. 
Findlay  v.  Hinde,  122. 
Finegan  v.  Theisen,  421. 
Fink  V.  Patterson,  492. 
Finley  v.  Cathcart,  416. 
Finnin  v.  Malloy,  392. 
First  Cong.  Soc.  v.  Trustees,  etc., 

113. 
First  Nat.  Bank  v.  Binninger,   372. 
First    Nat.    Bank    v.    Brennaman, 

417. 
First  Nat.  Bank  v.  Dwight,  497. 
First  Nat.  Bank  v.  Hunton,  447. 
First  Nat.  Bank  v.  Radford,  465. 
First  Nat.  Ins.  Co.  v.  Salisbury,  63. 
Fish  v.  Miller,  140,  179. 
Fisher  v.  Graham,  498. 
Fisher  v.  Holden,  261. 
Fisk  V.  Stewart,  460. 
Fitzburgh  v.  Everington,  388. 
Fitzgerald  v.  Elliott,  374. 
Pltzgibbon  v.  Barry,  48. 
Fitzhugh  V.  Maxwell,  460. 


TABLE    OF    CASES    CITED. 


xxxix 


References  are  to  sections. 


Fitzhugh  V.  McPherson,  256. 
Flagg  V.Mann,  172. 
Flagg  V.  Thurston,  414. 
Flaherty  v.  Cramer,  440. 
Flanders  v.  Chamberlain,  327. 
Fleece  v.  Russell,  130,  218,  224. 
Fleenor  v.  Drlskill,  359. 
Fleming  v.  Holt,  51. 
Fletcher  v.  Grover,  445. 
Fletcher  v.  Holmes,  327. 
Fletcher  v.  Peck,  327,  360. 
Florence  Sewing  Machine  Co.  v. 

Grover,  etc.  Co.,  429. 
Florida  Southern  Ry.  Co.  v.  Hill, 

46. 
Floyd  V.  Nangle,  337. 
Floyer  v.  Lavington,  475. 
Flynn    v.    Third    Nat.    Bank,   108, 

130. 
Fogg  V.  Merrill,  256. 
Fogg  V.  Price,  117. 
Fogle  V.  Michael  Church,  431. 
Foley  V.  Hill,  165. 
Folkerts  v.  Powers,  250. 
Folsom  V.  Ballard,  405. 
Foote  V.  Lathrop,  80, 
Ford  V.Adams,  86. 
Ford  V.  Coleman,  84. 
Ford  V.  Daniels,  418. 
Forrest  v.  Railway  Co.,  400. 
Foster  v.  Cook,  40. 
Foster  v.  Foster,  327. 
Foster  v.  Newton,  411, 
Fouse  V.  Vandervort,  358. 
Fout  V.  Lucas,  400. 
Fowler  v.  Brooks,  463. 
Fowler  v.  Brown,  84. 
Fowler  v.  Hamill,  324. 
Fowler  v.  Lee,  374. 
Fowler  v.  Parsons,  447. 
Fox  V.  Hale,  etc.  Mining  Co.,  38. 
Fox  V.  Pierce,  31. 
Fox  V.  Sutton,  374. 
Fraier  v.  Jenkins,  418. 
Fralich  v.  Despar,  400. 
Francis  v.  Francis,  330. 
Franco  v.  Franco,  64. 
Franklin  v.  Wilkinson,  344. 


Franklin  Bank  Note  Co.  v.  Rail- 
way Co.,  62. 
French  v.  Commercial  Bank,  46. 
French  v.De  Bow,  468. 
French  v.  Gapen,  63. 
French  v.  Gifford,  390. 
French  v.  Shoemaker,  324. 
French  et  al.  v.  Shotwell,  137, 
French   Lumbering   Co.   v.   Theri- 

ault  et  ux.,  492. 
Freehold,  etc.  Ass'n  v.  Brown,  233. 
Freeman  v.  Clay,  342. 
Freeman  v.  Henderson,  361. 
Freeman  v.  Howe,  400. 
Freeman  v.  Michigan   State  Bank, 

244. 
Freeman  v.  Pullan,  327. 
Fredericks  v.  Huber,  401. 
Freer  v.  Davis,  389. 
Friley  v.  Hendricks,  350. 
Frosts  V.  Yonkers  Savings  Bank, 

485. 
Fryberger  v.  Bervan,  501. 
Frye  v.  Bank  of  Illinois,  328. 
Frye  v.  Persall,  423. 
Ft.  Wayne  Electric  Corp.  v.  Frank- 
lin, etc.  Co.,  341,  347. 
Fulgham  v.  Morris,  462. 
Fuller  V.  Foote,  85. 
Fuller  V.  Jackson,  345. 
Fuller  V.  Knapp,  45. 
Fulton  V.  Greacen  et  al.,  133,  281. 
Fulton  Bank  v.  Beach,  189,  192. 
Fulton  Bank  v.  New  York,  191. 
Fulton  Co.  V.  Mississippi,  etc.  Co., 

188. 
Funk  V.  Avery,  377. 
Furnald  v.  Glenn,  325. 
Furniss  v.  Brown,  256. 
Gage  V.  Kaufman,  44,  428. 
Gage  V.  Reid,  412. 
Gage  V.  Riverside  Trust  Co.,  400. 
Gage  V.  Williams,  425. 
Calbraith  v.  Galbraith,  301. 
Gall  V.  Gall,  451. 
Gallagher  v.  Roberts,  108. 
Galpin  v.  Page,  451. 
Games  v.  Robb,  110. 


xl 


TABLE    OF    CASES    CITED. 


References  are  to  sections. 


Gamewell  Fire  Alarm  Tel.  Co.  v. 

Mayor,  etc.,  197. 
Gannett  v.  Blodgett,  450. 
Gardner  v.  California,  etc.,  419. 
Gardner  v.  Cohn,  470. 
Gardner  v.  Knight,  257,  420. 
Gardner  v.  Terry,  426. 
Garlick  v.  Strong,  123. 
Garret  v.   Kansas   City   Coal   Co., 

363. 
Garretson  v.  Weaver,  388. 
Garrett  V.Garrett,  400. 
Garrett  v.  Strubel,  85. 
Garrison  v.  Cox,  411. 
Garrison  v.  Little,  441. 
Garsed  v.  Beall,  316. 
Gary  v.  N.  W.  etc.  Ass'n,  86. 
Catling  V.  Newell,  46. 
Gault  V.  Hoagland,  100. 
Gaunt  V.  Froelick,  46. 
Cause  V.  Perkins,  399. 
Gay  V.  Parpart,  410. 
Gay  V.  Skeen,  126. 
Gaynor  v.  Blewett,  387. 
Geary  v.  Sheridan,  97,  98,  331. 
General  Electric  Co.  v.  Le  Grande, 

etc.  Co.,  469. 
General  Gas  Co.  v.  Stuart,  403. 
General  Ins.  Co.  v.  United  States 

Ins.  Co.,  485. 
Gentry  v.  Gentry,  433. 
George  v.  Electric  Lt.  Co.,  327. 
George  v.  Johnson,  338. 
George  V.  Nowlan,  425. 
George  et  al.  v.  Pilcher,  382. 
Georgia  v.  Brailford,  401. 
Geraty  v.  Druiding,  362. 
German  v.  Machin,  211,  414. 
German-American      Seminary     v. 

Kiefer,  32. 
German  Nat.  Bank  v.  Barham,  475. 
German  Reformed  Church  v.  Von 

Puechelstein,  116. 
Gernt  v.  Cusack,  38. 
Giant    Powder    Co.    v.    Cal.    etc. 

Works,  335,  336. 
Gibbons  v.  Pemberton,  491. 
Gibbs  V.  Insurance  Co.,  86. 


Gibson  v.  Crehore,  335,  338. 

Gibson  v.Goldthwaite,   372,   379. 

Gibson  v.  Rease,  103. 

Gibson  v.  Rees,  256. 

Gilbert  V.  Cooley,  465. 

Gilbert  v.  Galpin,  183. 

Gilbert  v.  Murphy,  135. 

Gilbert  v.  Washington    City,    etc. 

Ry.  Co.,  391. 
Giles  v.  Giles,  270. 
Gilkie  v.  Page,  183,  187. 
Gilman,  etc.  v.  New  Orleans,  etc. 

Ry.  Co.,  223. 
Gilmer  v.  Felhour,  225. 
Gill  V.  Cook,  376. 
Gill  V.  Everman,  26. 
Gill  V.  Weston,  411. 
Gillam  v.  Nussbaum,  392. 
Gillespie  v.  Moon,  418. 
Gillette  V.  Doheny,  128. 
Gilliam  v.  Baldwin,  320. 
Gillick  V.  Williams,  401. 
Gilmore  v.  Ham,  83. 
Gilpatrick  v.  Glidden,  324. 
Gish  V.  Jamison,  431. 
Gladden    v.    American    Mortgage 

Co.,  80. 
Glascott  V.  Lang,  401. 
Glass  V.  Hulbert,  117. 
Glassington  v.  Thwaites,  229. 
Gleason  v.  Kinney's  Adm'r,  476. 
Cleaves  v.  Morrow,  202. 
Glidden  v.  Norvell,  68,  112. 
Gloucester,  etc.  Co.  v.  Russie,  etc. 

Co.,  430. 
Glover  v.  Hargadine,  etc.  Co.,  121. 
Glover  V.  Jones,  345,  347,  351,  357. 
Glover  V.  Patten,  64. 
Goddard  v.  Stockman,  110. 
Goddard  v.  Wilde,  400. 
Godden  v.  Kimmell,  117. 
Godfrey  v.  Godfrey,  413. 
Godfrey  V.  Terry,  113. 
Godfrey  V.  White,  411. 
Godkin  v.  Cohn,  438. 
Goff  V.  Kelly,  218. 
Goff  V.  Price,  223. 
Gogherty  v.  Bennett,  26. 


TABLE    OF    CASES    CITED. 


xli 


References  are  to  sections. 


Goldberg  v.  Kirschstein,  431. 
Goldtree  v.  McAllister,  464, 
Goltra  V.  Sanasack,  418. 
Goncelier  v.  Foret,  441. 
Goodall  V.  Mopley,  465. 
Goodman  v.  Winter,  256. 
Gcoden  v.  Vinke,  471. 
Goodenow  v.  Curtis,  250. 
Goodnough  v.  Gatch,  394. 
Goodrich  v.  Pendleton,  198. 
Goodyear  v.  Bourn,  177. 
Goodwin  v.  Bishop,  197. 
Goodwin  v.  New    York,    etc.    Co., 

402. 
Gordin  v.  Dowing,  418. 
Gordon  v.  Johnson,  213. 
Gordon  v.  Lowell,  388. 
Gordon  v.  Mansfield,  400. 
Gordon  v.  Reynolds,  155,  250. 
Gorham  v.  Arnold,  460. 
Gorham  v.  Wing,  304. 
Gott  V.  Hoschna,  9. 
Gotzian  v.  Shakman,  482,  485. 
Gould  V.  Castle,  337. 
Gould  V.  Edison,  etc.  Co.,  183. 
Gould  V.  Gould,  169. 
Gould  V.  Spencer,  193. 
Gould  V.  Stanton,  221. 
Gove  V.  Pettis,  122. 
Grady  V.  Railway  Co.,  83. 
Grady  v.  Robinson,  183. 
Graff  V.  Bonnett,  494. 
Graffam  v.  Burgess,  250. 
Graham  v.  Elmore,  50.  327. 
Graham  v.  Graham,  440. 
Graham  v.  Mason,  183,  185. 
Grand  Rapids,  etc.  v.  Sparrow,  426. 
Grant  v.  City  of  Davenport,  391. 
Grant  v.  Duane,  475. 
Grant  v.  Insurance  Co.,  318. 
Grant  v.  Phoenix  Ins.  Co.,  359. 
Graves  v.  Blondell,  185. 
Graves  v.  Boston,  etc.  Co.,  418. 
Graves  V.  Niles,  251,  260,  265,  269. 
Gray  v.  Brignardello,  326. 
Gray  v.  Finch,  111. 
Gray  v.  Regan,  120,  183. 
Grazebrook  v.  M'Creedie,  490. 
d 


Great  North  of  England,   etc.   R. 

Co.  V.  Clarence,  etc.  Co.,  401. 
Great  Western  Ry.  Co.  v.  Birming- 
ham Ry.  Co.,  398,  401. 
Greatrex  v.  Greatrex,  401. 
Greeley  v.De  Cottes,  468. 

Greeley  v.  Smith,  271. 

Green  v.  Breckinridge,  328. 

Green  v.  Green,  68. 

Green  v.  Harris,  164. 

Green  v.  Hicks,  498. 

Green  v.  Paul,  26. 

Green  v.  Richards,  132. 

Green  v.  Stone,  421. 

Green  &  Trammell  v.  Trieber,  497. 

Greenberg  v.  Holmes,  405. 

Greene  v.  Star  Cash  Co.,  395. 

Greenley  v.  Hovey,  112,  117. 

Greenwalt  v.  Duncan,  225. 

Gregg  v.  Brower,  246. 

Gregory  v.  Stetson,  50. 

Grey  v.  Ohio,  etc.  Ry.  Co.,  398. 

Grider  v.  Payne,  327. 

Griffee  v.  Mann,  359. 

Griffin  V.  Fries,  214. 

Griffin  V.  Griffin,  213,  215. 

Griffin  V.  McGavin,  490. 

Griffing  v.   Griffing  Iron  Co.,  146, 
388. 

Griffith  V.  Blackwater,   314. 

Griffith  v.  Griffith,  172,  184. 

Griffith  V.  Merritt,  213. 

Griggs  V.  Gear,  344. 

Grim  v.  Wheeler,  251. 

Grissom  v.  Moore,  428. 

Griswold  v.  Fuller,  101,  425. 

Griswold  v.  Simmons,  225. 

Groesbeck  v.  Bennett,  421. 

Groosback  v.  Brown,  419. 

Groce  v.  Field,  327. 

Grubb  v.  Starkey,  436. 

Grumley  v.  Webb,  165. 

Guarantee,  etc.  Co.  v.  Powel,  469. 

Guardian  Soc.  v.  Roosevelt,  399. 

Gubbins  v.  Laughtanschlager,  249, 
313. 

Guernsey  v.  Rexford,  163. 

Guest  v.  Hewett,  295. 


xlii 


TABLE    OF    CASES    CITED. 


References  are  to  sections. 


Guild  V.  Butler,   445. 

Guild  V.  Hull,  316. 

Guilford  v.  Crandall,  463. 

Guinon  v.  Knapp,  474. 

Gulick  V.  Fisher,  406. 

Gun  V.  Prior,  142. 

Gunderman  v.  Gunnison,  330. 

Gunter  v.  Smith,  481. 

Gusdorff  V.  Schleisner,  110,  406. 

Guyton  v.  Terrill,  493. 

Haberman  v.  Kaufer,  202. 

Hackley  v.  Mack,  213,  215,  218,  223. 

Ilackworth  v.  Layne,  42B. 

Hadden  V.  Dooley,  401. 

Hadden  v.  Spader,  486. 

HafE  V.  Jennej',  154. 

Hager  v.  Shindler,  492. 

Hager  v.  Whitmore,  250. 

Hagner  v.  Heyberger,  400. 

Hagthrop  v.  Hook,  187,  256. 

Hahn  V.Kelly,  15. 

Hahn  v.  Salmon,  492. 

Haight  V.  Proprietor,  etc.  Co.,  191. 

Haine  v.  Hall,  399. 

Haines  v.  Beach,  466. 

Halbert  v.  Grant  489. 

Hale  V.  White,  388. 

Hale  et  al.  v.  Hale  et  al.,  50,  53,  85. 

Halfhide  v.  Robinson,  56. 

Hall  V.  Arnott,  475. 

Hall  V.  Baldwin,  380. 

Hall  V.  Calvert,  126,  130. 

Hall  V.  Clagett,  238. 

Hall  V.  Hall,  431,  477. 

Hall  V.  Home  Bldg.   Co.,   194,   260, 

269. 
Hall  V.Hudson,  333. 
Hall  V.  Piddock,  410. 
Hall  V.  Vernon,  411. 
Hall  V.  Wescott,  481. 
Hall  Lumber   Co.  v.   Gustin,   219, 

224. 
Kallett  V.  Cumston,  402. 
Hallett  V.  Hallett,  50. 
Hallinan  v.  Hearst,  439. 
Hallman  v.  Hallman,  483. 
Hallorn  v.  Trum,  499. 
Halsey  v.  Goddard,  114. 


Halstead  v.  Forest  Hill  Co.,  351. 
Halstead  v.  Shepard,  114. 
Hamersley  v.  Lambert,  221. 
Hamilton  v.  McLean,  414. 
Hamilton  v.  Savannah,      etc.      Ry. 

Co.,  327. 
Hamilton  v.  WTiitridge,  132. 
Hammett  v.  White,  477. 
Hammond  v.  Place,    248,    260,    261, 

335. 
Hammond  v.  State  Bank,  46. 
Hammond  v.  Winchester,  399. 
Hancock  v.  Craddock,  416. 
Hankey  v.  Simpson,  164. 
Hanley  v.  Noyes,  163. 
Hanly  v.  Watterson.  399. 
Hanna  v.  McLaughlin,  455. 
Hannah,  etc.  Co.  v.  Mosser,  88,  91. 
Hannaman  v.  Wallace,  208. 
Hanneman  v.  Richter,  411. 
Hansford  v.  Hansford,  87. 
Hardester  v.  Sharretts,  85. 
Hardin  v.  Boyd,  178,  245,  250,  251. 
Harding  v.  Handy,  50,  314. 
Harding  V.  Hart,    365. 
Hards  v.  Burton,  320. 
Hardwick  v.  Bassett,  209,  242. 
Hardy  v.  McClellan,  386. 
Hargreaves  v.  Menken,  463. 
Hargroves  v.  Nix,  353. 
Harkrader  v.  Wadley,  400. 
Harland  v.  Jones,  447. 
Harlow  v.  Lake  Superior  Iron  Co., 

151. 
Harmon  v.  Kelley,  413. 
Harold  v.  Bacon,  438. 
Harper  v.  Campbell,  117,  155. 
Harrigan  v.  Bacon,  250. 
Harriman  v.  Railway  Co.,  81. 
Harrington  v.  Becker,  276,  280. 
Harrington  v.  Brewer,  304. 
Harris  v.  Harris,  455. 
Harris  v.  Pollard,  281. 
Harris  v.  Smith,  421. 
Harrison  v.  Bradley,  164. 
Harrison  v.  Brewster,  219. 
Harrison  v.  Farmers',  etc.  Co.,  493. 
Harrison  v.  Farrington,  164,  173. 


TABLE   OF   CASES   CITED. 


xliii 


References  are  to  sections. 


Harrison  v.  Palmer,  491. 
Harrison  v.  Ridley,  278. 
Harrison  v.  Wallton,  50. 
Harrison's  Adm'x  v.  Johnson,  466. 
Hart  V.  Burch,  362. 
Hart  V.  Lindsey,  331,  337. 
Hart  V.  McKeen,  39,  40. 
Hart  V.  Small,  100,  284,  337. 
Hart  V.  Ten  Eyck,  207. 
Hart  V.  Wandle,  474. 
Hartley  v.  Bloodgood,  493. 
Hartman's  Appeal,  48. 
Hartpole  v.  Walsh,  480. 
Hartshorn  v.  Day,  9. 
Hartshorne  v.  Hartshorne,  408. 
Harvey  v.  Harvey,  50. 
Harvey  v.  Richmond    Ry.    Co.,    30, 

125. 
Harwood  v.  Railway  Co.,  353. 
Harwood  v.  Underwood,  475. 
Haskell  v.  Galbraith,  351. 
Hastie  v.  Aiken,  359. 
Hastings  v.  Cropper,  379. 
Hatch  V.  Eustapheive,  67. 

Hatch  v.  Spofford,  146. 

Hatch  V.  Village  of  St.  Joseph,  130, 
427. 

Hathaway  v.  Mitchell,  399, 

Hathaway  v.  Scott,  192,  290. 

Haughwout  v.  Murphy,  172. 

Haven  v.  Foster,  418. 

Havens  v.  "Willis,  447. 

Havner  v.  Stephens,  458. 

Hawes  v.  Detroit,  etc.  Ins.  Co.,  473. 

Hawes  v.  Dobbs,  183. 

Hawes  v.  Oakland,  49. 

Hawes  v.  Weeden,  475. 

Hawes  v.  Withrow,  399. 

Hawkins  v.  Chapman,  273. 

Hawkins  V.  Crook,  97,  98. 

Hawley  v.  James,  408. 

Hayden  v.  Boothe,  158. 

Hayes  v.  McReynolds,  413. 

Hayes  v.  Servis,  467. 

Hayes  V.Ward,  446,  485. 

Hayes  v.  Willio,  431. 

Hayes's  Appeal,  413. 

Hayman  v.  Cameron,  373. 


Haymond  v.  Camden,  322. 
Hays  v.  Hetherly,  130. 
Hazard  v.  Durand,  134. 
Hazeltine  v.  Granger,  460,  471. 
Head  v.  Egerton,  167. 
Head  v.  Phillips.  411,  414. 
Healy  v.  Seward,  363. 
Hearn  v.  Tennant,  396. 
Heartt  v.  Corning,  174. 
Heavenridge  v.  Mondy,  108. 
Hechmer  v.  Gilligan,  379. 
Heffron  r.  Gage,  462. 
Heffron  v.  Knickerbocker,  263. 
Heiskell  v.  Galbraith,  351. 

Heller  v.  King,  478. 

Hemingway  v.  Griswold,  411, 

Hemmer  v.  Wolfer,  77. 

Hemsley    v.    Marlborough    Hotel 
Co.,  400. 

Hemsley  v.  Myers,  400. 

Henderson  v.  Henderson,  262. 

Henderson  Co.  Board  v.  Ward,  401. 

Hendricks  v.  Robinson,  489. 

Hendrickson  v.  Bradley,  240, 

Hendrickson  v.  Canter,  77. 

Hendrickson  v.  Wallace,  132. 

Henn  v.  Walsh,  388. 

Henn  v.  Welsh,  453. 

Henry  v.  Buddecke,  302. 

Henry  v.  Insurance  Co.,  267. 

Henry  v.  Gregory,  67. 

Henry  v.  Koch,  411. 

Henry  v.  Ohio  River  Co.,  238. 

Henry  v.  Sager,  101. 

Hensicker  v.  Lamborn,  463. 

Herbert  v.  Hobbs,  132. 

Herbert  v.  Wren,  408. 

Herman  Loog  v.  Bean,  399. 

Herrick  v.  Churchill,  428. 

Herrick  v.  Snow,  439. 
Hervey  v.  Hervey,  84. 
Hervey  v.  Parry,  468. 
Herzog  v.  Fitzgerald,  403. 
Hess  v.  Adamant  Mfg.  Co.,  81. 
Hess  V.  Cole,  85. 
Hesselman  v.  McKeman,  477. 
Hewitt  V.  Adams,  246. 
Hewitt  V.  Dement,  250. 


xliv 


TABLE    OF    OASES    CITED. 


Beferences  are  to  sections. 


Hewlett  V.  Shaw,  310. 

Heyer  v.  Deaves,  473. 

Hiatt  V.  City  of  Washington,  405. 

Hibernian  Ass'n  v.  Law,  466,  473. 

Higgins  V.  Crawfurd,  169. 

Highstone  v.  Franks,  31,  150,  184. 

Hightower  v.  Mustain,  122. 

Higman  v.  Stewart,  468. 

Hilbish's  Ex'rs,  114. 

Hildebrand  v.  Beasley,  215. 

Hiles  V.  Brooks,  473. 

Fill  V.  Adams,  478. 

Hill  V.  Hill,  257. 

Hill  V.  McCarter,  474. 

Hill  V.  Mitchell,  400. 

Hillv.  Moone.  61. 

Hill  V.  Parker,  394. 

Hill  V.  Phelps,  327,  342. 

H'.llens  V.  Brinsfield,  412. 

Hills  V.  Dey,  416. 

Hills  V.  Metzenroth,  400. 

Hills  V.  Putnam  et  al.,  53. 

Hilman  v.  Hurley,  399. 

Hilton  V.  Guyott,  139. 

Hilton  V.  Lathrop,  68. 

Hinchman  v.  Stiles,  408. 

Hine  v.  City  of  New  Haven,  144. 

Hines  v.  Dresher,  447. 

Hines  v.  Rawson,  400. 

Hines  v.  Spruill,  376. 

Hinkle  v.  Margurem,  400. 

Hitchcock  V.  Merrick,  250. 

Hoadley  v.  Smith,  120,  125. 

Hochgraef  v.  Hendrie,  473. 

Hockaday  v.  Wortham,  400. 

Hodges  V.  McDuff.   335. 

Hodges  V.  Mullikin,  328. 

Hoff  V.  Olson,  123. 

Hoffman  v.  Beard,  411,  412. 

Hoffman  v.  Hummer,  248. 

Hoffman  v.  Knox.  341,  342, 

Hoffman  v.  Marshall,  250. 

Hofner  v.  Wynkoop,  433. 

Hoggart  V.  Cutts,  370. 

Hohl  V.  Reed,  467. 

Holbrook  y.  Ford,  499. 

Holcomb  V.  Mosher,  61. 

Holden  v.  Holden,  46. 


Holland  v.  Challen,  427. 
Holland  v.  Cruft,  441. 
Holland  v.  Trotter,  246. 
Hollingsworth  v.  M'Donald,  332. 
Hollister  v.  Loud,  497. 
Hollister  v.  Stewart,  146. 
Holmes  v.  Clark,  380. 
Holmes  v.  D'Camp,  163. 
Holton  V.  Guinn,  186. 
Home  Ins.  Co.  v.  Howell,  400. 
Home  Ins.  Co.  v.  Nobles,  246. 
Home  Ins.  Co.  v.  Virginia,  etc.  Co., 

60,  115. 
Home  Land   &   Cattle   Co.   v.   Mc- 

Namara,  322. 
Home  Life  Ins.  Co.  v.  Caulk,  379, 

380. 
Homeopathic,    etc.    Co.    v.    Crane. 

184. 
Homer  v.  Barr  et  al.,  395. 
Hone  V.  Woolsey,  490. 
Honor  v.  Wing,  134. 
Honore  v.  Colmesnil,  328. 
Hood  V.  Inman,  26,  41,  183. 
Hood  V.  Morgan,  31. 
Hook  V.  Richeson,   210. 
Hook  V.  Whitlock,  184. 
Hooker  v.  Hubbard,  158. 
Hooper  v.  Brodrick,  401. 
Hooper  v.  De  Vries,  411. 
Hopkins  v.  Medley,  410. 
Hopkins   v.    Roseclare   Lead   Co.,. 

327. 
Hopper  V.  Hopper,  183,  186. 
Hord  V.  Marshall,  273. 
Horn  V.  Detroit  Dry  Dock  Co.,  304. 
Horner  v.  Dey,  471. 
Horton  V.  Hubbard,  433. 
Horton  v.  Mercier,  225. 
Horton  v.  Saunders,  468. 
Hoskins  v.  Cole,  184. 
Hottenstein  v.  Conrad,  388. 
Houghwout  V.  Murphy,  172, 
House  V.  Dexter,  433. 
Houser  v.  Lament,  460. 
Housten  v.  Bank,  446. 
Houston  V.   Nat.   etc.  Ass'n,   47S^ 

481. 


TABLE    OF    CASES    CITED. 


xlr 


References  are  to  sections. 


Houston  V.  Sledge,  237. 
Hovenden  v..Annesley,  151. 
Hovey  v.  Elliott,  285,  286. 
How  V.  Camp,  208. 
Howard  v.  Bond,  473. 
Howard  v.  Fay,  440,  441. 

Howe  V.  Babcock,  489. 

Howe  V.  Lawrence,  233. 

Howell  V.  Cooper,  489. 

Howell  V.  Rome,  etc.  Co.,  31. 

Howell  V.  Sebrlng,  250. 

Howth  V.  Owens,  146,  318. 

Hoxle  V.  Carr,  276. 

Hoxie  V.  Scott,  327. 

Hoyt  V.  Hoyt,  145. 

Hoyt  V.  Smith,  250,  253. 

Hoyt  V.  Thompson,   395. 

Hubbard  v.  Hubbard,  322. 

Hubbard  v.  Manhattan    Trust   Co., 
38,  151. 

Hubbard  v.  Trust  Co.,  31. 

Hubbard  v.  Urton,  46. 

Hubbell  V.  Lankenau,  329. 

Hudkins  v.  Ward,  485. 

Hudson  V.  Hudson,  333. 

Hudson  V.  Plets,  392. 

Hudson  et  al.  v.   Eisenmayer  et 
al.,  53. 

Hudson  Tunnel    Co.    v.    Attorney- 
General,  400. 

Huet  V.  Lord  Say,  278. 

Huffman    v.    Hummer,    245,    248, 
249. 

Hugglns  V.  York  Buildings,  108. 

Hughes  V.  Blake,  176. 

Hughes  V.  Hughes,  383. 

Hughes  V.  Parker,  400. 

Hughes  V.  Shreve,  323. 

Hughes  V.  United  States,  158. 

Hughs  V.  Link  Belt  Machine  Co., 
489. 

Hulbert  v.  Detroit  Cycle  Co.,  61. 

Hulfish  V.  O'Brien,  468. 

Hull  V.  Hull,  431. 

Hull  V.  Thomas,  396, 

Hull  V.  Watts,  316. 

Humbert  v.  Churchwardens,  etc., 
151. 


Hummel  v.  Moore,  183. 

Humphrey  v.  Harrison,  471. 

Hungerford  v.  Scott,  448. 

Hunt  V.  Columbian   Ins.   Co.,  395. 

Hunt  V.  Graham,  302. 

Hunt  V.  Hunt,  416. 

Hunt  V.  New  Jersey  Traction  Co., 

180. 
Hunt  V.  Rousmanier,  300. 
Hunt  V.  Sain,  401. 
Hunt  V.  Wallace,  291. 
Hunt  V.  Wickliffe,  246. 
Hunt  V.  Wing,  290. 
Hunter  v.  Hopkins,  302. 
Hunter  v.  Kennedy,  327. 
Huntington  v.  Jones,  491. 
Hurd  V.  Case,  214. 
Hurd  V.  City  of  Elizabeth,  395. 
Hurd  V.  Everett,  256. 
Hurlbut  V.  Britain,  140. 
Hurtt  V.  Crane,  98,  327. 
Huse  V.  Washburn,  317. 
Hutchinson  v.  Brisco,  442. 
Hutchinson  v.  Leroy,  439. 
Hutchinson  v.  Ried,  256. 
Hutchinson  v.  Van  Voorhis,  41. 
Hutchinson  v.  Yahm,  473. 
Hyar  v.  Little,  209. 
Hyatt  V.  City  of  Washington,  405. 
Idaho,  etc.  Co.  v.  Bradbury,  316. 
Ideal  Clothing  Co.  v.  Hazle,  121. 
Iglehart  v.  Crane,  474. 
Illingworth  v.  Rowe,  377,  382. 
Illinois,  etc.  Bank  v.  Railway  Co., 

465. 
Independent    College    v.    Zeigler, 

238. 
India  Rubber  Co.  v.  Phelps,  251. 
Indian  Orchard  Canal  Co.  v.  Sikes, 

400. 
Indian    River,    etc.    Co.    v.    East 

Coast  Transp.  Co.,  399. 
Ines  V.  Evans,  145. 
Ingersoll  v.  Kirby,  39. 
Ingham  v.  Weed,  466. 
lugilby  V.  Shafto,  196. 
Iiigle  V.  Jones,  297. 
Ingles  V.  Bryant,  355. 


xlvi 


TABLE   OF   CASES   CITED. 


Eeferences 

fngraham  v.  Bunnell,  249,  253. 

In  re  Axtell,  327. 

In  re  Brant,  395. 

In  re  Debs,  400. 

In  re  De  Godey  v.  Godey,  406. 

In  re  Jackson,  406. 

In  re  Lennon,  401. 

In  re  May,  288. 

In  re  Pitts.  406. 

In  re  Sawyer,  400. 

In  re  Schwarz,  406. 

In  re  Storr's  Estate,  309. 

In  re  Thompson,  416. 

In  re  Vanderbilt,  193. 

In  re  Wall's  Estate,  411. 

Inskeep  v.  Hook,  113. 

Insurance  Co.  v.  Bailey,  146. 

International  et  al.  v.  Jenkins  et 

al.,  359. 
International  Lumber  Co.  v.  Mau- 

rer,  120. 
Interstate,    etc.    Ass'n    v.    Ayers, 

470. 
Iowa,  etc.  Co.  v.  Day,  464. 
Ireland  V.  Kelly,  206,  369,  406. 
Ireland  v.  Woolman,  327,  474. 
Irick  V.  Black,  49. 
Irons  V.  Crist,  94. 
Irvin  V.  Gregory,  432. 
Irvine  v.  Dunham,  437. 
Irvine  v.  Leyh,  85. 
Irving  V.  DeKay,  221. 
Irwin  V.  Exton,  399. 
Isaacs  V.  Jones,  392. 
Isham  V.  Miller,  229. 
Isham  V.  Sienknecht,  489,  500. 
Isley  V.  Knight,  344. 
Isnard  v.  Cazeaux,  284,  291. 
Ivens  v.  Cincinnati,  etc.  Ry.  Co., 

463. 
Ives  v.  Edison,  401. 
Jackson  v.  Byrnes,  400. 
Jackson  v.  Forrest  Leggett,  64. 
Jackson  v.  Hubbard,  484. 
Jackson  v.  Kansas    City,   etc.   Co., 

26. 
Jackson  v.  Kraft,  204. 
Jackson  v.  Lawrence,  475. 


are  to  sections. 

Jackson  v.  Simmons,  225. 

Jacobs,  etc.  v.  Mellon,  86. 

James  v.  Brown,  484. 

James  v.  Groff,  411. 

James  v.  Sams,  374. 

Jameson  v.  De  Shields,  246. 

Jameson  v.  Rixey,  416. 

Janes  v.  Throckmorton,  441. 

Jarman  v.  Wiswall,  334. 

Jarvis  v.  Martin,  31. 

Jarvis  v.  Peck,  400. 

Jeffries  v.  Rudloff,  83. 

Jehle  V.  Brooks,  466. 

Jenkins  v.  Bacon,  427. 

Jenkins  v.  Baum,  184. 

Jenkins  V.  Eldredge,  184,  341. 

Jenkins  v.  Van  Schaak,  414. 

Jenks  v.  Horton,  487,  489. 

Jennes  v.  Landis,  47. 

Jenny  v.  O'Flynn,  100. 

Jensen  v.  Norton,  401. 

Jermain  v.  Langdon,  337. 

Jerome  v.  Jerome,  68. 

Jerome  v.  McCarter,  466. 

Jerome  v.  Ross,  399. 

Jersey  City,  etc.  Co.  v.  Blackwell, 
399. 

Jersey  City  Gas  Co.  v.  Consum- 
ers' Gas  Co.,  399. 

Jewett  v.  Palmer,  138,  172. 

Jewett  v.  Smith,  64. 

John  D.  Park  &  Sons  v.  National, 
etc.  Ass'n,  31. 

John  Hancock  Ins.  Co.  v.  Dick,  146.; 

Johnes  v.  Cutwater,  465,  466. 

Johnson,  Adm'r,  v.  Diversey,  151, 
152. 

Johnson  v.  Brown,  39. 

Johnson  v.  Buttler,  211. 

Johnson  v.  Donnell,  461. 

Johnson  v.  Bunnell,  100. 

Johnson  v.  Everett,  332. 

Johnson  v.  Hosford,  477. 

Johnson  v.  Hubbell,  431. 

Johnson  v.  Hutchinson,  26. 

Johnson  v.  Irwin,  462. 

Johnson  v.  Johnson,  79,  327,  338, 
429. 


TABLE    OF    CASES    CITED. 


xlvii 


Eeferences  are  to  sections. 


Johnson  v.  Kelly,  101. 
Johnson  v.  Moore,  449. 
Johnson  v.  Olmstead,  416. 
Johnson  v.  Pinney,  286,  416. 
Johnson  v.  Plotner,  431. 
Johnson  v.  Roberts,  108,  110. 
Johnson  v.  Shephard,  337. 
Johnson  v.  Sukeley,  432. 
Johnson  v.  Tucker,  202. 
Johnson  v.  Whitley    Grocery    Co., 

400. 
Johnston  v.  Grosvenor,  249. 
Johnston  v.  Johnston,  102. 
Johnston  v.  Jones,  400. 
Johnstone  v.  O'Connor,  438. 
Jones  V.Beit,  328. 
Jones  V.  Cleary,  364. 
Jones  V.  Cunningham,  207. 
Jones  V.  Davenport,  334. 
Jones  V.  Dillihanty,  85. 
Jones  V.  Disbro,  420. 
Jones  V.Dow,  110,  483. 
Jones  V.  Fayerweather,  343. 
Jones  V.  Green,  489. 
Jcnes  V.  Jones,  264. 
Jones  V.  Lloyd,  56. 
Jones  V.  Magill,  403. 
Jones  V.  McPhillips,  256. 
Jones  V.  Merrill,  88. 
Jones  V.  Myers,  33. 
Jones  V.  Oemler,  400. 
Jones  V.  Pilcher,  344. 
Jones  V.  Schall,  386. 
Jones  V.  Smith,  212,  215. 
Jones  V.  Wing,  183. 
Jordan  v.  Hardie,  343,  347. 
Jordan  v.  Miller,  388. 
Joslin  V.  Williams,  466,  467,  468. 
Jourolman  v.  Ewing,  345. 
Jourolman  v.  Massengill,  130. 
Joy  V.  St.  Louis,  399. 
Joyce  V.  Growney,  194,  258. 
Joynes  v.  Statham,  430. 
Judge  V.  Booge,  328. 
Judson  V.  Walker,  493. 
Kanawha,  etc.  Bank  v.  Wilson,  SO. 
Kanawha   Lodge,    etc.   v.    Swann, 
215. 


Kane  V.  Bloodgood,  138,  150,  153. 

Kane  v.  Loder,  392. 

Kane  v.  Mann,  52. 

Kansas,  etc.  Co.  v.  Electric,  etc. 

Co.,  297,  322. 
Katz  V.  Brewington,  388,  455. 
Katzer  v.  Milwaukee,  442. 
Keating  v.  Fitch,  401. 
Keene  v.  La  Farge,  276. 
Keeney  v.  Lyon,  338. 
Keepfor  v.  Force,  359. 
Keifer  v.  Barney,  328. 
Keith  V.  McLaughlin,  462. 
Kelley  V.  Riley,  330. 
Kellner  v.  Mutual,  etc.  Co.,  176. 
Kellogg  V.  King,  399. 
Kellogg  V.  Hamilton,  121. 
Kelly  V.  Boettcher,  114,  151. 
Kelly  V.  Brooks,  337. 
Kelly  V.  Central,  etc.  Ry.  Co.,  431. 
Kelly  V.  Galbraith,  11,  260. 
Kelly  V.  Insurance  Co.,  86. 
Kelly  V.  Kelly,  448,  449. 
Kelly  V.  Longshore,  469. 
Kelly  V.  Roane  Iron  Co.,  106. 
Kemeys  v.  Netterstrom,  214. 
Kendall  v.  New  England  Co.,  482. 
Kendig  v.  Dean,  49. 
Kennebec,    etc.    Ry.    Co.   v.   Port- 
land Ry.  Co.,  114. 
Kennedy  v.  Kennedy  et  al.,  218. 
Kent  V.  Dean,  431,  436. 
Kenton  v.  Railway  Co.,  398. 
Kerfoot  v.  Billings,  117. 
Kern  v.  Zink,  211. 
Kerr  v.  Lansing,  60. 
Kerse  v.  Miller,  476. 
Kerslake  v.  Cummings,  364. 
Ketcham  v.  Driggs,  122. 
Keyser  v.  Meusback,  235. 
Kidd  V.  Horry,  399. 
Kidder  v.  Barr,  212,  225. 
Kidder  v.  Houston,  154. 
Kilbourn  v.  Sunderland,  9,  11. 
Kilbreth  v.  Root's  Adm'x,  237. 
Kilgore  v.  Redmill,  419. 
Killian  v.  Ebbinghous,  370, 
Kilmer  v.  Gallagher,  481. 


xlviii 


TABLE    OF    OASES    CITED. 


References  are  to  sections. 


Kilmer  v.  Smith,  417. 

Kimberly  v.  Anns,  320,  321.  343, 

351,  353. 
Kimble  v.  Harrington,  418. 
King  V.  Donnelly,  437. 
King  V.  Harrington,  84. 
King  V.  Insurance  Co.,  290. 
King  V.  King,  253. 
King  V.  Payen,  208. 
King  V.  Whitely,  466. 
Kingsbury  v.  Buckner,  224. 
Kingsbury  v.  Kingsbury,  322. 
Kinnear  v.  Lowell,  470. 
Kinsel  v.  Kinsel,  343. 
Kinsey  v.  Burgess,  etc.  Works,  84. 
Kinsey  v.  Kinsey,  160. 
Kintner  v.  Pickard,  459. 
Kirby  v.  Taylor,  180,  198. 
Kirk  V.  Kane,  394. 
Kirkham  v.  Justice,  30. 
Kirkland  v.  Express  Co.,  98. 
Kirkpatrick  v.  Clark,  441. 
Kittles  V.  Williams,  425. 
Kittridge,  etc.  v.  Clarmount,  188. 
Kitts  et  al.  v.  Wilson  et  al.,  235. 
Kleebauer   v.   Western,    etc.    Co., 

400. 
Klever  v.  Seawall,  410. 
Klinck  V.  Price,  475. 
Kline  v.  Kline,  87. 
Knight  V.  Bampfield  et  al.,  164. 
Knighton  v.  Curry,  446. 
Knorr  v.  Millard,  59. 
Knowles  v.  Spence,  480. 
Knowlton  v.  Hanbury,  225. 
Knox  V.  Harshman,  325. 
Knox  V.  Miller,  84. 
Knox  Rock  Blasting  Co.  T.  Rair- 

donstone  Co.,  134. 
Knoxville  v.  Africa,  399. 
Kobarg  v.  Greeder,  438. 
Koen  V.  Kerns,  419. 
Kohn  V.  McNulta,  316. 
Koopman  v.  Blodgett,  399, 
Kopper  V.  Dyer,  477. 
Kransz  v.  Uedelhofen,  469. 
Krippendorf  v.  Hyde,  62,  215. 
Krolick  v.  Root,  489. 


Kusterer,  etc.  Co.  v.  Friar,  163w 
Kyle  V.  Coal  Co.,  372,  377. 
Kyner  v.  Kyner,  450. 
Labadie  v.  Hewitt,  68,  132. 
Ladd  V.  Chase,  370. 
Lafayette  v.  Neely,  38. 
Lafayette  Ins.  Co.  v.  French  et  al., 

30. 
Laird  v.  Wilder,  400. 
Lake  v.  Jarrett,  416. 
Lake's  Petition,  83. 
Lakens  v.  Fielden,  125. 
Lalance,    etc.    Co.    v.    Haberman 

Mfg.  Co.,  51. 
Lamb  v.  Ewing,  289. 
Lamb  v.  Jeffrey,  33,  478. 
Lamb  v.  McLaughlin,  250. 
Lamb  v.  Montague,  475. 
Lambert  v.  Lambert,  130,  225. 
Lambertville    Nat.    Bank    v.    Mc- 

Cready,  460,  469. 
Lamprey  v.  Lamprey,  422. 
Lamprey  v.  St.  Paul,  etc.  Ry.  Co., 

432. 
Lamson  v.  Drake,  477. 
Lancaster  v.  Ashville,  etc.  Ry.  Co., 

387. 
Land  Co.  v.  Peck,  49. 
Lane  v.  Newdigate,  401. 
Lane  v.  Union  Nat.  Bank,  46. 
Langley  v.  Chapin,  448. 
Lankton  v.  Scott,  290. 
Lannert  v.  Pies,  68. 
Lanning  v.  Cole,  273. 
Lanoy  v.  Duke  of  Athol,  482. 
Lansdale  v.  Smith,  117. 
Lansing  v.  Pine,  122. 
Large  v.  Van  Doren,  465. 
Larrison  v.  Peoria,    etc.    Ry.    Co., 

191. 
Larrison  r.  Polhemus,  361. 
Larter  v.  Canfield,  126,  130. 
Lashbrooks  v.  Hathaway,  465. 
L.  A.  Thompson,  etc.  Co.  v.  Young, 

403. 
Laughlin  v.  Greene,  207. 
Laughton  v.  Harden,  122. 
Laverty  v.  Hall,  432, 


TABLE    OF    CASES    CITED. 


xia 


References  are  to  sections. 


La\^^  V.  Citizens',  etc.  Bank,  481. 

Law  V.  Ford,  388,  455. 

Law  V.  Spence,  462. 

Lawrence  v.  Bolton,  256. 

Lawrence  v.  Smith  et  al.,  86. 

Lawrence  v.  Trustees,  151. 

Lawton  v.  Levi,  489. 

Laycock  v.  Pickles,  163. 

Laylin  v.  Knox,  473. 

Lea  V.  West  Jersey,  etc.  Co.,  463, 

Lea  et  al.  v.  Robeson,  110. 

Leacraft  v.  Demprey,  180,  185,  198. 

Leahan  v.  Cochran,  400. 

Leath  v.  Watson,  443. 

Leavitt  v.  Cruger,  95. 

Leavltt  V.  Fisher,  376. 

Leavitt  v.  Palmer,  418. 

Le  Baron  v.  Shepherd,  110. 

Le  Clare  v.  Thibault,  468. 

Ledyard's  Appeal,  439. 

Lee  v.  Enos,  438. 
Lee  V.  Lee,  276. 
Lee  V.  Watson,  399. 
Leeds  V.  Insurance  Co.,  309. 
Leggett  V.  Postley,   187. 
Leggett  V.  Sellon,  197. 
Le  Grande  v.  Fairall,  84. 
Lehman  v.  Meyer,  500. 
Lehman  v.  Tallassee,  211. 
Lehman,  etc.  v.  Dozier,  223. 
Leiter  v.  Baude,  463. 
Lenfers  v.  Henke,  411. 
Lenning  v.  Lenning,  316. 
Lennon  v.  Porter,  478. 
Lentilhon  v.  Moffat,  493. 
Leo  V.  Union  Pac.  Ry.  Co.,  402. 
Leonard  v.  Pope,  55. 
Leonard  v.  Smith,  223. 
Leonard,  etc.  v.  Cook,  263,  267. 
Leslie  v.  Leslie,  183. 
Lewis  V.  Bridgman,  280. 
Lewis  V.  Campau,  359. 
Lewis  V.  Darling,  246,  250. 
Lewis  V.  Lanphere,  256. 
Lewis  V.  North,  315. 
Lewis  V.  Small,  406. 
Libby  v.  Norris,  53,  493. 
Lick  V.  Ray,  425. 


Light  V.  Light,  56. 

Lincoln  v.  Aldrich,  SCO. 

Lincoln  v.  Purcell,  121. 

Lindsey  v.  Lindsey,  256. 

Lingan  v.  Henderson,  327. 

Lipscomb  v.  McClellan,  256. 

Litch  V.  Clinch,  209. 

Littel  V.  Ragan,  492. 

Little  V.  Merrill,  211. 

Livingston  v.  Hayes,  257. 

Livingston  v.  Iron  Co.,  64. 

Livingston  v.  Jones,  467. 

Livingston  v.  Livingston,  55. 

Livingston  v.  Marshall,  255. 

Livingston  v.  Story,  185. 

Livingston  v.  Woolsey,  337. 

Lloyd  V.  Brewster,  40,  46. 

Lloyd  V.  Johnes,  281. 

Lloyd  V.  Loaring,  50. 

Lloyd  V.  Pennie,  298. 

Lockard  v.  Lockard,  132. 

Lockhart  v.  Leeds,  110. 

Loftis  V.  Butler,  357. 

Logan  V.  Harris,  359. 

Logansport  Hardware  Co.  v.  City 
of  Logansport,  431. 

Loggie  V.  Chandler,  304. 

Long  V.  Brown,  433. 

Long  V.  King,  442. 

Long  V.  Long,  88,  337. 

Long  V.  Mulford,  102. 

Long  Branch,  etc.  Co.  v.  Sneden, 

291. 
Longfellow  v.  Barnard,  392. 
Lonsdale  Co.  et  al.  v.  Woonsocket, 

48,  60,  115,  399,  400. 
Look  V.  McCahill,  380. 
Loomis  V.  Roberts,  438. 
Lord  V.  Underdunk,  64. 
Lore  V.  Getsinger,  489. 
Lorenz  v.  Jacobs,  413. 
Loring  v.  Hildreth,  426. 
Loring  v.  Palmer,  438. 
Lorton  v.  Seaman,  239. 
Los  Angeles,  etc.  Co.  v.  Muir,  400. 
Losey  v.  Simpson,  172. 
Loud  V.  Sergeant,  136. 
Loud  V.  Winchester,  438. 


TABLE    OF    CASES    CITED. 


References  are  to  sections. 


Loughridge  v.  Cawood,  215. 
Louisville,  etc.  Ry.  Co.  v.  Palmes, 

110. 
Louisville  Ry.  Co.  v.  Hubbard,  262. 
Lounsbury  v.  Purdy,  426. 
Lovell  V.  Kelley,  344. 
Low  V.  Low,  459. 
Low  V.  Mills,  327,  332,  337. 
Lowenfeld  v.  Curtis,  405. 
Lowenstein  v.  Glidewell,  224. 
Lowry  v.  Stapp,  126,  130. 
Lowther  v.  Carlton,  478. 
Lozier  v.  Administrators,  etc.,  377. 
Luchette  v.  Frost,  432. 
Lucking  v.  Wesson,  447. 
Ludington  v.  Patton,  154,  422. 
Ludlow  v.  Gilman,  468. 
Ludlow  V.  Ludlow,  428. 
Lumley  v.  Wagner,  431. 
Lumsden  v.  Manson,  477. 
Lundy  v.  Seymour,  154. 
Luton  V.  Badham,  184. 
Lutzen  v.  Lutzen,  424. 
Lyle  V.  Addicks,  459. 
Lynch  v.  Jackson,  475. 
Lynch  v.  Johnson,  114, 
Lynde  v.  Lynde,  334. 
Lynde  v.  O'Donnell,  473. 
Lyndon  v.  Lyndon,  103. 
Lyon  V.  Smith,  468. 
Lyon  V.  Tallmadge,  130,  178,  245. 
Lyons  v.  Van  Riper,  278. 
Lyster  v.  Stickney,  256. 
Mackey  v.  Gordon,  84. 
Mackey  v.  Smith,  327. 
Mackintyre  v.  Jones,  401. 
Maclean  v.  Circuit  Judge,  406. 
Macomb  v.  Prentiss,  473. 
Maddox  v.  Craig,  86. 
Madison  V.  Wallace,  223. 
Madison    Athletic   Co.  v.  Brittin, 

431. 
Maese  v.  Hermann,  110. 
Magniac  v.  Thompson,  110. 
Mahagan  v.  Mead,  474. 
Maher  v.  Lanfrom,  184. 
Mains  v.  Homer  Steel  Fence  Co., 
134. 


Maitland  v.  Gibson,  289. 
Malin  v.  Malin,  56. 
Malony  v.  Kernan,  172. 
Mallory  v.  Vanderheyden,  9. 
Mallow  V.  Hinde,  50. 
Manchester  v.  Mathewson,  280. 
Manchester  et  al.  v.  McKee,  Ex'r, 

100. 
Manchester,  etc.   Co.  v.   Manches- 
ter, 400. 
Mandeville  v.  Campbell,  499. 
Manhattan  Bank  v.  Walker,  439. 
Manistique     Lumbering     Co.     v. 

Lovejoy,  68. 
Manley  v.  Mickle,  134. 
Mann  v.  Brooks,  285. 
Mann  v.  Ruby,  493. 
Manning  v.  Drake,  31. 
Manning  V.  Fifth    Parish,    etc.,    33. 
Manning  v.  Heady,  235. 
Mannix  v.  Purcell,  437. 
Mansfield  v.  Sherman,  434. 
Manufacturing    Co.    v.    Lindblom. 
346. 

Marble  v.  Bonhotel,  247. 

Margie  Co.  v.  Ripley,  431. 

Markham  v.  Markham,  55. 

Markwell  v.  Markwell,  49. 

Marmion  v.  McClellan,  301. 

Marquis    of    Downshire    v.    Lady 
Sandys,  405. 

Marr  v.  Lewis,  223. 

Marr  V.  Wilson,  249. 

Marsh  v.  Cook,  468. 

Marsh  v.  McNair,  417. 

Marshall  v.  Blass,  491. 

Marshall  v.  Croom,  316. 

Marshal  v.  Means,  114. 

Marshall  v.  Rench,  44. 

Martin  v.  Atkinson,  249,  270. 

Martin  v.  Davis,  399. 

Martin  v.  Kester,  214. 

Martin  v.  Lutkewitte,  38. 

Martin  v.  Martin,  416. 

Martin  v.  McReynolds,  465,  467. 

Martin  v.  Reese,  238,  308. 

Martin  v.  Tenison,  36. 

Marvin  v.  Brooks,  439. 


TABLE   OF   OASES    CITED. 


u 


References  are  to  sectiona. 


Maryland  v.  Northern,  etc.  Ry.  Co., 

471. 
Mason  v.  Blair,  253. 
Mason  V.Daly,  328. 
Mason  v.  Equitable    League,    etc., 

400. 
Mason  v.  Luce,  462. 
Mason  v.  Payne,  474. 
Mason  v.  Pierron,  500. 
Mason  v.  Stevens,  481. 
Massie  v.  Donaldson,  77. 
Massie  v.  Graham,  344. 
Mastenbrook  v.  Alger,  113. 
Masterson  v.  Little,  86. 
Mateer  v.  Cockrill,  46. 
Mathiason  v.  City  of  St.  Louis,  213. 
Matson  v.  Melchor,  487. 
Mattel  V.  Conant,  146. 
Matthews  v.  Dunbar,  252. 
Mattison  v.  Demorest,  500. 
Mattison  v.  Morris,  421. 
Mawman  v.  Tegg,  400. 
May  V.  Bryn,  492,  499. 
May  V.  Coleman,  270. 

May  V.  Williams,  285. 

Maynard  v.  Hoskins,  487. 

Maynard  v.  Pomfret,  97. 

Maynard  v.  Pereault,  341. 

Mayor  v.  Rains,  402. 

McAllister  v.  Harmon,  394. 

McArthur  v.  Clark,  414. 

McArthur  v.  Gordon  et  al.,  438. 

McArthur  v.  Scott,  50. 

McBride  v.  Mclntyre,  61. 

McCabe  v.  Farnsworth,  101. 

McCall's  Appeal,  416. 

McChanahan  v.  Davis,  26. 

McClane's   Adm'rs   v.    Shepherd's 
Ex'rs,  237. 

McClellan  v.  Seim,  315. 

McCloskey  v.  Barr,  138,  139,  147, 
196,  211,  351. 

McClung  V.  Colwell,  327. 

McClung  V.  North  Bend,  etc.  Co., 
400. 

McClure  v.  Adams,  466. 

McClure  v.  Otrich,  155. 

McComb  V.  Prentiss,  473. 


McCombs  V.  Merryhew,  390. 

McConnell  v.  McConnell,  40. 

McCormick  v.  Chamberlin,  197. 

McCormick  v.  Cook,  442. 

McCormick  v.  Jerome,  404. 

McCormick  v.  Riddle,  110. 

McCoy  V.  Boley,  122. 

McCoy  V.  Fire  Ins.  Co.,  388,  489. 

McCoy  V.  Stockman,  84. 

McCoy  V.  World's,  etc.  Exposition, 

26. 
McCree  v.  Purmont,  151. 
McCreery  v.  Brown,  406. 
McCreery  v.  Circuit  Judge,  74,  93, 

197. 
McCullough  V.  Day,  388,  497. 
McCully  V.  McLean,  432. 
McDaniel  v.  Baskerville,  276. 
McDaniel  v.  McCoy,  59. 
McDearmon  v.  Durham,  151. 
M'Dermutt  v.  Strong,  489. 

McDonald  v.  Salem,  etc.  Co.,  139. 

McDonald  v.  Whitney,  355. 

McDonough  v.  Squire,  460. 

McDougald  v.  Williford,  246. 

McDowell  V.  Kurtz,  400. 

M'Dowl  V.  Charles,  117. 

McEldowney  v.  Lowthar,  406. 

McElreth  v.  Pittsburg  Ry.  Co.,  464. 

McElwain  v.  Willis,  Yardly  et  al., 
489. 

McEwen  v.  Broadhead,  146,  147. 

McFadden  v.  Mays,  465. 

McGarrah  v.  Prather,  375,  379. 

McGill  V.  Deming,  87. 

McGonnigle  v.  McGonnigle,  445. 

McGoren  v.  Avery,  338. 

McGorray  v.  O'Connor,  308,  309. 

M'Gown  V.  Yerks,  264. 

McGregor  v.  Camden,  400. 

McGregor  v.  Silver     King    Mining 
Co..  399. 

McGuire  v.  Caskey,  400. 

McGuire  v.  Circuit  Judge,  210. 

McHenry  v.  Hazard,  380. 

Mclllvaine  v.  Smith,  500. 

Mclntire  v.  Conrad,  150. 

Mclntire  v.  Pryor,  154. 


lii 


TABLE    OF    CASES    CITED. 


References  are  ta  sections. 


Mcintosh  V.  Alexander,  130. 
Mclntyre  v.   Marlboro  Wholesale 

Grocery  Co.,  405. 
Mclntyre    v.    Trustees    of    Union 

College,  26. 
McKay  v.  McKay,  30. 
McKay  V.  McNeill,  413. 
McKenzie  v.  Flannery  &  Co.,  46. 
McKim  V.  Mason,  239. 
McKim  V.  Thompson,  270. 
McKim  V.  "^ATiite  Hall  Co.,  183. 
McKinley  v.  Miller,  465,  475. 
McKinney  v.  Curtiss,  9. 
McKinzie  v.  Hodgkin,  215. 
McLaughlin  v.  Hart,  483. 
McLaughlin  v.  McCrory,  85. 
McMahon  v.  McClernan,  388. 
McMahon  v.  Rooney,  31. 
McMann  v.  Westcott,  246. 
McMichael  v.  Brennan,  194,  251. 
McMillan  v.  Bissell,  460. 
McMillan  v.  Croniu,  411. 
McMillan  v.  James,  33. 
McMullan  v.  Ferrell,  399. 
McMullen  v.  Ritchie,  482. 
McNaughton   v.    Partridge,   418. 
McNutt  V.  Roberts,  126. 
McPherson  v.  Hayward,  481. 
McPike  V.  Penn.  426. 
McQueen  v.  Whetstone,  476,  478. 
McVeigh    v.    United    States,    285, 

286. 
Meach  v.  Lee,  310. 
Mead  V.  Martens,  436. 
Mead  v.  Merritt,  399,  400. 
Mechanics'  Bank  v.  Seton,  465. 
Mechanics'  Nat.  Bank  v.  Mfg.  Co., 

400. 
Medsker  v.  Bonebrake,  321. 
M.  E.  Church  v.  Jaques,  183,  196. 
Meek  v.  Spracher,  317. 
Meeker  V.  Marsh,  146. 
Meeker  v.  Meeker,  316. 
Meers  v.  Stevens,  26. 
Meeting,  etc.  Soc.  v.  Hail,  437. 
Mehan  v.  Owens,  431. 
Meigs  V.  McFarland,  475- 
Melick  V.  Cross,  436. 


Meloy  V.  Dougherty,  425 
Memphis,  etc.  Ass'n  v.  WIegner, 

418. 
Memphis,  etc.  Ry.   Co.  v.  Neigh- 
bors, 183. 
Memphis,  etc.  Ry.  Co.  v.  Owens, 

128. 
Mengel  v.  Coal  &  Navigation  Co., 

109. 
Mercantile  Deposit  Co.  v.  Dimon, 

374. 
Mercantile  Trust  Co.  v.  Missouri, 

etc.  Ry.  Co.,  141,  183,  202. 
Mercer  v.  Williams  et  al.,  399. 
Merchant  et  al.  v.  Insurance  Co., 

369. 
Merchants'   Bank  v.   Kent  Judge, 

386. 
Merchants'  Nat.  Bank  v.  Allamont 

Club,  468. 
Merchants'     Nat.     Bank     v.     Mc- 

Anulty,  445. 
Merchants'  Nat.  Bank  v.  McDon- 
ald, 499. 
Merchants'  Nat.  Bank  v.  Snyder, 

468. 
Merreweather  v.  Mellish,  142,  146, 

280. 
Merrill  v.  Washburn,  38. 
Merritt  v.  Ehrman,  423. 
Merritt  et  al.  v.  Gibson,  388. 
Merson  v.  Merson,  310. 
Messenger  v.  Peter,  428. 
Metcalf  V.  Hart,  225. 
Metcalf  V.  Hoopingardner,  410. 
Metier  v.  Metier,  400. 
Metler's  Adm'rs  v.  Metier,  108. 
Metropolitan,  etc.  Co.  v,  Columbus 

Ry.  Co.,  467. 
Meyer  v.  Saul,  117. 
Meyer  v,  Weber,  462. 
Michael  v.  Mace,  224. 
Michigan  Ins.  Co.  v.  Whittemore, 

339. 
Michigan  State  Bank  v.  Gardner, 

49. 
Michigan  State  Bank  v.  Hastings, 

61. 


TABLE    OF    CASES    CITED. 


liii 


References  ave  to  sections. 


Michigan,  etc.  Co.  v.  White,  373, 

381. 
Mickle  V.  Maxfield,  332,  350. 
Middlesex  Co.  v.  Osgood,  155. 
Midgeley  v.  Slocomb,  482. 
Midmer  v.  Midmer's  Ex'rs,  250. 
Miles  v.Hoag,  318,  324,  467. 
Miles  V.  Miles,  273. 
Milholland  v.  Whalen,  438. 
Milk  V.  Moore,  316. 
Milkman  v.  Ordway,  459. 
Millard  v.  Truax,  478. 
Miller  V.  Cook,  425. 
Miller  v.  Cornwell,  459. 
Miller  v.  Cramer,  438. 
Miller  v.  Grandy,  20,  60. 
Miller  v.  Hall,  493. 
Miller  v.  Hare,  130. 
Miller  v.  Mclntyre,  151. 
Miller  V.  Miller,  166,  411. 
Miller  v.  Mutual,  etc.  Ass'n,  401. 
Miller  v.  Sawyer,  445. 
Miller  v.  Stalker,  26. 
Miller  v.  Thompson,  466. 
Miller  V.  United    States,    etc.    Co., 

302. 
Miller  v.  United     States    Casualty 

Co.,  180. 
Miller  v.  Wilkins.  327. 
Miller  V.  Wills,  316. 
Miller's  Appeal,  448. 
Miller's  Heirs  v.  Mclntyre,  237. 
Mills  V.  Hoag,  145,  318,  324. 
Mills  V.  McLeod,  337. 
Mills  V.  Pittman,  238. 
Millspough  V.  McBride,  337. 
Milly  V.  Harrison,  102. 
Milner  v.  Milner,  263. 
Milwaukee,    etc.    Co.   v.   Bradley, 

403,  406. 
Minnesota,  etc.  Ry.  Co.  v.  Hiams, 

110. 
Minnesota,  etc.  Ry.  Co.  v.  St.  Paul, 

etc.  Co.,  261,  264. 
Minnighoff  v.  Sayre,  428. 
Minot  V.  Mastin,  394. 
Minthorne's    Ex'rs    v.    Tompkins. 

333. 


Minturn  v.  Seymour,  431. 
Mirandona  v.  Burg,  431. 
Mississippi,  etc.  Co.  v.  McDonald, 

418. 
Missouri,  etc.  Co.  v.  Guymon,  439. 
Mitchell  V.  Bartlett,  473. 
Mitchell  V.  Bunch,  146. 
Mitchell  V.  Hayne,  370. 
Mitchell  V.  Moore,  327. 
Mitchell  V.  Overman,  326,  330. 
Mitchell  V.  Simpson,  315. 
Mitchell  V.  Woodson,   155. 
Mitchell,  etc.  Co.  v.  O'Neil,  84. 
Mitchellson  v.  Smith,  483. 
Mix  V.  Mackie,  337. 
Mix  V.  People,  250. 
Moat  V.  Holbein,  396. 
Mobile  Savings  Bank  v.  Burke,  60. 
Mock  V.  City  of  Santa  Rosa,  114. 
Mohawk,  etc.  Ry.  Co.  v.  Clute,  371, 

375,  377. 
Monarch  Brewing  Co.  v.  Wolford, 

100. 
Monarch,  etc.  Co.  v.  Hand,  474. 
Moon  V.  Missouri,  etc.  Ry.  Co.,  26. 
Moon  V.  National   Wall,   etc.   Co., 

11. 
Montague  v.  Selb,  270. 
Montgomery  v.  Brown,  465. 
Montgomery  v.  Council,  etc.,  448 
Montgomery  v.  Enslen,    392. 
Montray  v.  Dieckman,  433. 
Moore  V.  Bank,  126,  130. 
Moore  v.  Cheeseman,  68. 
Moore  v.  Clear  Lake  Water  Works, 

402. 
Moore  v.  McNutt,  399. 
Moore  v.  Moore,  438,  445. 
Moore  v.  Omaha    Life   Ass'n,    388, 

489. 
Moore  v.  Smith,  396. 
Moore  v.  Titman,  100. 
Moore  V.  Woodall,  102. 
Moors  V.  Moors,  188. 
Moran  v.  Abbey,  448. 
Moran  v.  Daly,  316. 
Mordaunt  v.  Hooper,  389. 
Morenhout  v.  Higuera,  414. 


iiv 


TABLE    OF   CASES    CITED. 


References  are  to  sections. 


Morgan  v.  Morgan,  433. 
Morgan  v.  Mueller,  411. 
Morgenstern  v.  Klees,  462. 
Morrill  v.  Manhattan  Life  Ins.  Co., 

377. 
Morris  v.  Bacon,  418. 
Morris  v.  Branchaud,  471. 
Morris  v.  Elme,  383. 
Morris  v.  Holland,  46. 
Morris  v.  Hoyt,  209. 
Morris  v.  Taylor,  184. 
Morrison  v.  Houck,  501. 
Morrison  v.  Mayer,  246,  250,  459. 
Morrison  v.  Moat,  400. 
Morrison  v.  Smith,  328. 
Morrison  v.  Warner,  445. 
Morrow  v.   Lawrence  University, 

433. 
Morse  V.  Byam,  465. 
Morse  v.  Hovey,  51. 
Morse  v.  Trust  Co.,  478. 
Mortgage    &    Trust    Co.    v.    Mar- 

quam,  470. 
Mosher  v.  Davis,  314. 
Moshier's  Appeal,  448. 
Moshier  v.  Knox  College,  250. 
Moundsville  v.  Railway  Co.,  67. 
Moulin  V.  Insurance  Co.,  85. 
Mount  V.  Manhattan,  etc.,  147. 
Mount  Carbon,  etc.  Co.  v.  Blanch- 

ard,  60. 
Mowrey  v.  Indianapolis,  etc.  Co., 

403. 
Mt.  Holly,  etc.  Co.  v.  Ferree,  122, 

379,  382. 
Muir  V.  Hodges,  487,  494. 
Muir  V.  The  Trustees,  etc.,  64. 
Muldrow  V.  Muldrow,  327. 
Mullan  V.  United  States,  20. 
Muller  V.  Dows,  30,  464. 
Mullin  V.  Sparks,  84. 
Mumma  v.  Potomac  Co.,  271. 
Munch  V.  Shabel,  250,  256. 
Mundy  v.  Mundy,  408,  410. 
Munford  v.  Sprague,  49. 
Munson  v.  Munson,  425. 
Munter  v.  Linn,  253. 
Murphy  v.  Branaman,  351. 


Murphy  v.  Hoyt,  471. 

Murphy  v.  Johnson,  347. 

Murphy  v.  Robinson,  467. 

Murphy  v.  Rooney,  418. 

Murphy  v.  Schoder,  343. 

Murray  v.  Etchepare,  394,  468,  470. 

Murray  v.  Hay,  493. 

Murray  v.  Ingersoll,  343. 

Murray  v.  Murray,  85. 

Musselman  v.  Marquis,  399. 

Mutual,  etc.  Ins.  Co.  v.  Pinner,  85. 

M.  V.  Monarch  Co.  v.  Bank,  388. 

Myers  v.  Dorr,  179. 

Myers  v.  Fenn,   493. 

Nance  v.  Metcalf,  417. 

Nash  V.  Cutler,  437. 

Nash  V.  Smith,  375. 

Nashville,  etc.  Ry.  Co.  v.  M'Con- 

nell,  398. 
Nason  v.  Willard,  411. 
National    Bank    v.    Augusta,    etc. 

Co.,  377. 
National  Bank  v.  Colby,  271. 
National  Bank  v.  Carpenter,  130. 
National  Bank  v.  Dwight,  489. 
National   Banlc   v.    Insurance   Co., 

135,  175,  176,  271. 
National  Bank  v.  McCormick,  500. 
National,  etc.  Co.  v.  Interchange- 
able, etc.  Co.,  197. 
National  Foundry  &  Pipe  Works 

V.  Oconto,  etc.  Co.,  478. 
National   Tube  Works   v.   Ballon, 

489. 
Neafie  v.  Neafie,  158,  318,  333. 
Neal  V.  Briggs,  322. 
Neale  v.  Foster,  217,  221,  222. 
Neale  v.  Neales,  246,  25(1 
Neale  V.  Suber,  316. 
Nealis  v.  Insley,  392. 
Nebraska  Nat.  Bank  v.  Hollowell. 

499. 
Needham  v.  Bythwood,  166. 
Neely  v.  Henkel,  26. 
Neldon  v.  Roof,  301. 
Nelson  v.    Duncombe,  56. 
Nelson  V.  Eaton,  103. 
Nelson  v.  Haisley,  411. 


TABLE    OF   CASES    CITED. 


lY 


References  are  to  sections. 


Nelson  v.  Hill,  493. 
Neubert  v.  Massman,  263. 
Nevada  Nickel  Syndicate  v.  Nat. 

etc.  Co.,  260. 
New  V.  Bame,  406. 
New  V.  Wright,  388. 
Newberry  v.  Blatchford,  225. 
Newcomb  v.  Horton,  50. 
Newell  V.  Bureau  Co.,  110. 
New  England,   etc.   Co.  v.  Davis, 

106. 
New  England,  etc.  Co.  v.  Lisbon, 

344. 
New  England,  etc.  Co.  v.  Marlbor- 
ough, etc.  Co.,  400. 
New    England,    etc.    Mfg.    Co.    v. 

Odell,  370. 
New    England    Ry.    Co.    v.    Hyde, 

117. 
Newhall  v.  Kastens,  373,  382. 
Newhall  v.  Sherman,  467. 
New   Iberia   Co.   v.   Romero,   401, 

403. 
New  Jersey  v.  New  York,  82. 
Newland  v.  Rogers,  117. 
Newman  v.  Bank,  83. 
Newman  v.  Freitas,  431. 
Newman  v.  Locke,  477. 
Newman  v.  Moody,  125. 
Newman  v.  Schwerin,  443. 
Newman  v.  Wallis,  142. 
New  Music  Hall  v.  Orpheon  Music 

HaJl  Co.,  403. 
New  Orleans  v.  Dudley,  155. 
New  Orleans,  etc.  R.  Co.  v.  Par- 
ker, 465. 
Newton  v.  Thayer,  237. 
New  York  Bank  Note  Co.  v.  Kerr, 

405. 
New  York  Baptist  Union  Ass'n  v. 

Atwell,  85. 
New  York,  etc.  Ass'n  v.  Brennan, 

474,  482. 
New  York,  etc.  Co.  v.  Milnor,  474. 
New  York,  etc.  Tel.  Co.  v.  Jewett, 

394. 
New    York   Ice   Co.   v.    Insurance 
Co.,  359, 


Nichol  V.  Nichol,  223. 

Nichols  V.  Padfield,  184. 

Nichols  V.  Rogers,  248,  442. 

Nichols  V.  Williams,  52. 

Nicholson  v.  Squire,  286. 

Nicholson  v.  Tarpey,  419. 

Nickles    v.    People's,    etc.    Ass'n, 
462. 

Nicoll  v.  Roosevelt,  276. 

Nilsson  v.  Jefferson,  400. 

Nishbet  v.  Sawyer,  398. 

Noble  V.  Shearer,  15. 

Nodes  V.  Battle,  97. 

Noe  V.  Gibson,  396. 

Noev.  United  States,  358. 

Nofsinger  v.  Reynolds,  379. 

Nordlinger  v.  Ostatag,  491. 

Norfolk  Ry.  v.  McGarry,  237. 

Norris  v.  Bean,  493. 

Norris  v.  He,  256. 

North  V.  Brace,  445. 

North  American  Coal  Co.  v.  Dyett, 
246. 

North  American,  etc.  Co.  v.  Wat- 
kins,  388. 

North  Pacific  Lumber  Co.  v.  Lang, 
372. 

North  River  Bank  v.  Rogers,  472. 

Northcut  V.  Lemery,  98. 

Northern    Ry.    Co.    v.    Walworth, 

202. 
Northup  V.  Boone,  434. 
Norton  v.  Parsons,  250. 
Nott  V.  Hill,  327. 
Nowell  V.  Sanborn,  350. 
Nowland  v.  Glenn,  332. 
Nudd  V.  Powers,  327. 
Nugent  V.  Nugent,  490,  497. 
Nurse  v.  Weits,  487. 
Nusbaum  v.  Myer,  390. 
Oakdale  Mfg.  Co.  v.  Garst,  400. 
Oakley  v.  Paterson,  387,  388. 
Oakman  v.  Walker,  476. 
Obert  V.  Obert,  413. 
O'Brien  v.  Ash,  411. 
O'Brien  v.  Heeny,  250. 
O'Brien  v.  Wetherell,  400. 
O'Callaghan  v.  Blake,  103. 


Ivi 


TABLE    OF    CASES    CITED. 


References  are  to  sections. 


Ocean  Beach  Ass'n  v.  Brinley,  408. 
Ocmulgee  Lumber  Co.  v.  Mitchell, 

399. 
O'Connor  v.  O'Connor,  257. 
Odom  V.  Owens,  215. 
Oelberman  v.  Ide,  85. 
Oelrichs  v.  Spain,  439. 
Ogden  V.  Armstrong,  425. 
Ogden  V.  Aster,  163. 
Ogden  V.  Davidson,  327. 
Ogden  V.  Moore,  247,  250. 
Ogden  V.  Thornton,  250. 
Oglivie  V.  Heme,  98,  327. 
O'Hara  v.  MacConnell,  102. 
Ohio    Cultivator    Co.    v.    People's 

Nat.  Bank,  38. 
Oil  Run,  etc.  Co.  v.  Gale,  376. 
Old  Colony  v.  Dubuque,  etc.  Co., 

154. 
Olden  v.  Hubbard,  117. 
Oliphint  V.  Hartley,  132. 
Oliphint  V.  Mansfield  Co.,  49. 
Oliver  v.  Decatur,  125. 
Oliver  v.  Palmer,  36. 
Olmstead  v.  Taylor,  462. 
Olson  V.  Lamb,  11. 
O'Neal  V.  Hines,  400. 
Oneida  Co.  v.  Bonney,  146. 
Opperman  v.  Waterman,  400. 
Orb  V.  Coapstick,  442. 
Orcutt  V.  Orms,  180,  198. 
Orr  Shoe  Co.  v.  Kimbrough,  47. 
Orth  V.  Orth,  438. 
Orthwein  v.  Thomas,  327. 
Orton  V.  Knab,  246. 
Orvis  V.  Powell,  474. 
Osborn  v.  Bank,  58. 
Osbom  V.  Heyer,  388. 
Osburn  v.  San  Diego,  etc.  Co.,  342. 
Ottawa,  etc.  Co.  v.  Murray,  462. 
Otten  V.  Railway  Co.,  265. 
Ould  V.  Stoddard,  463. 
Outhwite  V.  Porter,  98. 
Over  V.  Gallagher,  463. 
Overall  v.  Avant,  126,  130. 
O.  &  W.  Thum  Co.  v.  Tloczynski, 

400. 
Owen  V.Cross,  269,  270. 


Owen  v.  Curzon,  281. 

Owens  v.  Barroll,  327. 

Owens  V.  Williams,  439. 

Pace  V.  Parties,  164. 

Pacific  Bank  v.  Robinson,  489. 

Pacific  Live  Stock  Co.  v.  Hanley, 

130. 
Pacific  Ry.  Co.  v.  Ketcham,  327. 
Packard  v.  Kingman,   438. 
Packard  v.  Stevens,  369. 
Packet  Co.  v.  Sickles,  158. 
Packington  v.  Barrow,  480. 
Paddock  v.  Somes,  400. 
Page  V.  Carnine,  432. 
Page  V.  Higgins,  417,  418. 
Page  V.  Holmes,  339. 
Page  V.  Whidden,  60. 
Paige  V.  Broadfoot,  192. 
Paine  v.  Richards,  132. 
Palethrop  v.  Palethrop,  320,  321. 
Palk  V.  Clinton,  478. 
Palmer  v.  Hartford,   etc.   Co.,   417, 

419. 
Palmer  v.  Palmer,  36. 
Palmer  v.  Rich,  246,  254. 
Pappenheimer  v.  Roberts,  493. 
Parberry  v.  Goran,  250. 
Parisian   Comb   Co.  v.  Eschwege» 

297. 
Park  V.  Johnson,  431. 
Park,  etc.  Bank  v.  Haley,  110. 
Parker  V.  Alcock,  179. 
Parker  V.  Barker,  275,  380. 
Parker  v.  Browning,  394. 
Parker  v.  Flagg,  324. 
Parker  v.  Parker,  146. 
Parker  V.  Randolph,   465,   467,  468. 
Parker  v.  Simpson,  271. 
Parker  v.  Stevens,  121. 
Parker  v.  Straat,  158. 
Parkhurst  v.  Kinsman,  261. 
Parkman  v.  Welsh,  183. 
Parks  V.  Jackson,  371. 
Parleys    Park,    etc.    Min.    Co.    v.. 

Kerr,  428. 
Parrill  v.  McKinley,  246. 
Partlow  V.  Moore,  370. 
Partridge  v.  Brennan,  47. 


TABLE    OF    CASES    CITED. 


Ivii 


References  are  -to  sectiona. 


Partridge  v.  Haycraft,  196. 
Partridge  v.  Usborne,  344. 
Pascault  V.  Cochran,  387. 
Passumpsic    Sav.    Bank   v.    First 

Nat.  Bank,  223. 
Patterson  v.  Birdsall,  447. 
Patterson  v.  Blake,  416. 
Patterson  v.  Brown,  499. 
Patterson  v.  Lynde,  489,  490. 
Patterson  v.  Scott,  192,  207. 
Paterson,    etc.    Ry.    Co.    v.    The 

Mayor,  26. 
Pattison  v.  Hull,  210. 
Pattisonv.    Powers,  467,  472. 
Patten  V.  Wagner,  410. 
Paul  V.  Cragnez,  411. 
Peabody  v.  Kendall,  317, 

Peabody  et  al.  v.  Norfolk  et  al., 

400. 
Peachy  v.  Witter,  467. 

Peake  v.  Young,  436. 

Pearse  v.  Dobinson,  333. 

Pearson  v.  Badger,  473. 

Pearson  v.  Cardon,  372. 

Pearson  v.  Tower,  110. 

Pearson  v.  Treadwell,  196. 

Pease  v.  Phelps,  111. 

Pease  v.  Warren,  465. 

Peck  V.  Adsit,  102. 

Peck  V.  Burgess,  177. 

Peck  V.  Jenness,  400. 

Peck  V.  Mellams,  253. 

Peck  V.  School  District,  184. 

Peckman  v.  Buffam,  304. 

Pedrick  v.  White,  261. 

Peer  v.  Cookerow,  273,  276,  281. 

Peirsall  v.  Elliott,  423. 

Pelham  v.  Newcastle,  294. 

Pell  V.  Landers,  406. 

Pelletier  v.  Greenville  Lumber  Co., 
392. 

Pelletreau  v.  Rathbone,  280. 

Peltier  v.  Peltier,  59,  403. 

Pendleton  v.  Fay,  280,  281. 

Penfield  v.  Village,  etc.,  419. 

Penn  v.  Fogler,  31. 

Penn  v.  Hearon,  52. 

Penney  v.  McColloch,  501. 
e 


Pennock  v.  Hart,  4. 
Pennoyer  v.  Neff,  86. 
Pennsylvania,  etc.  Co.  v.  Franklin 

Ins.  Co.,  423. 
Pennsylvania  Ry.  Co.  v.  National, 

etc.  Co.,  406. 
Penny  v.  Cook,  477. 
Pentlarge  v.  Pentlarge,  267. 
Pentz  v.  Hawley,  189. 
People  V.  Barger,  365. 
People  V.  Curley,  26. 
People  V.  Central   City  Bank,   396. 
People  V.  District  Court,  etc.,  400. 
People  V.  Rogers,  396,  397. 
People  V.  Truckee     Lumber     Co., 

400. 
People  ex  rel.  v.  Everest,  151. 

People's  Gas  Co.  v.  Tyner,  400. 

People's    Ins.    Ass'n    v.    Mayfield, 
482. 

People's  Ins.  Co.  v.  Crawford,  387. 

People's  Inv.  Co.  v.  Marion  Trust 
Co.,  388. 

People's  Nat.  Bank  v.  Kern,  388. 

Pepper   v.    Supreme    Court,    etc., 
395. 

Pereles  v.  Albert,  464. 

Perine  v.  Dunn,  480. 

Perkin  v.  Stafford,  234. 

Perkins  v.  Montgomery,  369. 

Perrin  v.  Lepper,  359. 

Perry  v.  Boyd,  422. 

Perry  v.  Phelips,  351. 

Peterson  v.  Gatling,  489. 

Peterson  v.  Groves,  300. 

Peterson  v.  Lindskoog,  392. 

Pethtel  v.  McCullough,  154. 

Petit  V.  Candler,  183. 

Petit  V.  Shepherd,  426. 

Pettibone  v.  Edwards,  465,  468. 

Phalen  v.  Clark,  150,  154. 

Phelps  V.  Garrow,  135,  176. 

Phelps  V.  Sproule,  271. 

Philbrick  v.  Shaw,  447. 

Phillips  V.  Langhorn,  133. 

Phillips  V.  Pitts,  425. 

Phillips  V.  Stanch,  431. 

Phillips'  Appeal,  320. 


Iviii 


TABLE    OF    CASES   CITED. 


References  are  to  sections. 


Piatt  V.  Oliver,  51,  147. 
Piatt  V.  St.  Clair's  Heirs,  482. 
Pickering  v.  Day,  207,  208. 
Pierce  v.  Chism,  3y4. 
Pierce  v.  Pagans,  14G,  184. 
Pierce  v.  Kneeland,  253. 
Pierce  v.  McClellan,  184. 
Pierce  V.  West,  238. 
Piercy  v.  Beckett,  257. 
Pieri  v.  Shieldsboro,  185. 
Pillsbury,   Washburn,   etc.   Co.   v. 

Eagle,  400. 
Pincers  v.  Robertson,  192. 
Pinch  V.  Anthony,  263. 
Pioneer  Land  Co.  v.  Maddox,  426. 
Pipe   Works   v.   Oconto,   etc.   Co., 

478. 
Pirtle  V.  Penn,  387. 
Pittman  v.  McClellan,  337. 
Pitts  V.  Short,  123. 
Pittsburg,  etc.  Ry.  Co.  v.  O'Brien, 

428. 
Pixlee  V.  Osborn,  317. 
Piatt  V.  Judson,  487. 
Piatt  V.  Oliver,  51. 
Piatt  V.  Stewart,  84,  85. 
Plum  V.  Smith,  189. 
Plummer  v.  Keppler,  430. 
Plummer  v.  May,  145. 
Plympton  v.  Hall  et  al.,  56. 
Pokegama,   etc.   Co.   v.   Klamath, 

etc.  Co.,  401. 
Polhemus  v.  Holland  Trust  Co.,  9. 
Poling  v.  Huffman,  322. 
Pollard  V.  Wegener,  84. 
Pollard  V.  Wellford,  213,  215. 
Pomeroy  v.  Fullerton,  434. 
Pomeroy  v.  Winship,  314. 
Pomfret  v.  Windsor,  138. 
Poor  V.  Carleton,  403,  406. 
Pope  Mfg.  Co.  V.  Gormully,  431. 
Porter  v.  Wormer,  155. 
Port  Huron,  etc.  Ry.  Co.  v.  Circuit 

Judge,  406. 
Post  V.  Beacon,  etc.  Pump  Co.,  31. 
Post  V.  Campbell,  425. 
Post  V.  Mackall,  482. 
Post  V.  Post,  416. 


Postal  Tel.  Cable  Co.  v.  Snowden, 

48. 
Potter  V.  Gardner,  64. 
Potter  V.  Potter,  405. 
Potter  V.  Street  Ry.  Co.,  401. 
Powder  Co.  v.  Powder  Works,  126, 

129. 
Powell  V.  Howell,  489. 
Powell  V.  Mayo,  259. 
Powell  V.  Monson,  408. 
Powell  V.  Powell,  207. 
Powell  V.  Weatherington,   416. 
Powers  V.  Blue  Grass,  388. 
Powers  V.  Golden  Lumber  Co.,  475. 
Powers  V.  Hibbard,  213. 
Prater  v.  Bennett,  419. 
Pratt  V.  Lewis,  121. 
Pratt  V.  Northam,  9. 
Prentiss    Tool    Co.    v.    Godchaux, 

225. 
Prescott  V.  Hutchinson,  228. 
Prescott  v.  White,  411. 
Preston  v.  Preston,  151,  445. 
Price  V.  Crone,  102. 
Price  V.  Notrebe,  344. 
Price  V.  Oakfield,  etc.  Co.,  459. 
Prichard  v.  Littlejohn,  413. 
Printing  Press,  etc.  Co.  v.  M.  L. 

&  Co.,  83. 
Prittle  V.  Penn,  388. 
Pritty  V.  Hartsook,  463. 
Proctor  V.  Oates,  480. 
Proctor  V.  Plumer,  74. 
Proprietors  of  Mills,  etc.  v.  Brain- 
tree,  etc.  Co.,  60,  115. 
Prospect     Park,     etc.     v.     Coney 

Island,  etc.  Co.,  399. 
Prouty  V.  Railway  Co.,  260,  263 
Provident  Sav.  Inst.  v.  White,  382. 
Pugh  V.  Pugh,  77. 
Pullan  V.  Cincinnati,  etc.  Ry.  Co., 

388. 
Pullman  v.  Stebbins,  61. 
Purefoy  v.  Purefoy,  32. 
Pursel  V.  Armstrong,  487. 
Purvines  v.  Harrison,  418. 
Pusey  V.  Desbouvrie,  164. 
Putnam  V.Day,  343. 


TABLE    OF   OASES    OITED, 


lix 


References  are  to  sections. 


Putnam  v.  Putnam,  273. 
Putney  v.  Whitmire,  263. 
Quackenbush  v.  Leonard,  280. 
Quartz  Hill,  etc.  Co.  v.  Beall,  399. 
Quayle  v.  Bayfield  Co.,  403. 
Queen  City  Stock  &  Grain  Co.  v, 

Cunningham,  406. 
Quick  V.  Lemon,  222. 
Quick  V.  Stuyvesant,  9,  418. 
Quin  V.  Brittain,  477. 
Quinby  v.  Conlan,  316,  317,  321. 
Quincy,    etc.    Co.    v.    Humphreys, 

388. 
Quinn  v.  McMahon,  33. 
Rabenstein   v.    Chicago,    etc.   Co., 

206. 
Rachael  v.  Smith,  448. 
Racine,  etc.  Ry.  Co.  v.  The  Farm- 
ers', etc.  Co.,  468. 
Railton  v.  People,  498. 
Railway  Co.  v.  Ackley,  100. 
Railway  Co.  v.  Carr,  400. 
Railway  Co.  v.  Chambers,   361. 
Railway  Co.  v.  Ellerman,  400. 
Railway  Co.  v.  Express  Co.,   318. 
Railway  Co.  v.  McConnell,  400. 

Railway  Co.  v.  Orr,  465. 

Railway  Co.  v.  Soutter,  418. 

Railway  Co.  v.  Sprague,  462. 

Ralston  v.  Lahee,  102. 

Ralston's  Appeal,  86. 

Ramey  v.  Green,  260. 

Ramsbottom  v.  Parker,  454. 

Ramsey  v.  Liston,  435. 

Ramsey  v.  Smith,  417. 

Rand  v.  Barrett,  447. 

Randall  v.  Howard,  117. 

Randall  v.  Lang,  64. 

Randall  V.  Payne,  323. 

Randall  v.  Reynolds,  470. 

Randolph  v.  Dickerson,  281. 

Rankin  V.  Barcroft,  329. 

Rankin  V.  Rothchild,  183,  498. 

Rann  v.  Rann,  413. 

Ransdel  v.  Moore,  400. 

Ransoms  v.  Geer,  30. 

Ransome  v.  Sutherland,   290,   291, 
292. 


Ransome  v.  Winn,  295. 

Rathbone  v.  Clark,  474. 

Raub  V.  Otterback,  86. 

Ray  V.  Home,  etc.  Co.,  213. 

Raymond  v.  Came,  211. 

Rea  V.  Longstreet,  425. 

Read  v.  Franklin,  341,  347. 

Reavis  v.  Reavis,  154. 

Redding  v.  Rozell,  418. 

Redfield  v.  Gleason,  211. 

Redhead  v.  Baker,  328.     . 

Redkey,  etc.  Co.  v.  Orr,  400. 

Reed  v.  Consequa,  192,  406. 

Reed  v.  Cumberland,  202. 

Reed  V.  Insurance  Co.,  197,  202. 

Reed  v.  Kemp,  225. 

Reed  v.  Stanley,  344,  355. 

Reed  et  al.  v.  Whitney,  408. 

Reeg  V.  Burnham,  495. 

Reese  v.  Barker,  361. 

Reeves  v.  Brown,  464. 

Reid  V.  McCallister  et  ux.,  207. 

Reid  V.  Stuart's  Ex'r,  27«. 

Reilly  v.  Hodgkins,  31. 

Reissner  v.  Anness,  134. 

Remsen  v.  Hay,  500. 

Renshaw  v.  First  Nat.  Bank,  154. 

Renton  v.  Chapling,  453. 

Renwick  v.  Wilson,  247. 

Revels  v.  Revels,  218. 

Reynard  v.  Brecknell,  344. 

Reynes  v.  ^tna  Life  Ins.  Co.,  392. 

Reynes  v.  Dumont,  11. 

Reynolds  v.  Campbell,  418. 

Reynolds  v.  Florida,   etc.   Ry.   Co., 

345. 
Reynolds  v.  Stockton,  395. 
Reynolds  v.  Summer,  438. 
Reynolds  v.  Touzalin  Imp.  Co.,  400. 
Rhea  v.  Puryear,  253. 
Rhino  v.  Emery,  137. 
Rhode    Island    v.    Massachusetts, 

135,  176,  179. 
Rhodes  v.  Lee,  390. 
Ribon  V.  Railway  Co.,  49. 
Rice  V.  Waddill,  408. 
Rich  V.  Braxton,  425. 
Richard  v.  Boyd,  464. 


TABLE    OF    CASES    CITED. 


References  are  to  sections. 


Richards  v.  Chesapeake,    etc.    Ry. 

Co.,  294. 
Richards  v.  People,    396. 
Richards  v.  Richards,  411. 
Richards  v.  Salter,  382. 
Richardson  v.  Bank,  450. 
Richardson  V.  Belt,  370. 
Richardson  v.  City  of  Eureka,  317. 
Richardson  v.  Orth,  431. 
Richardson  v.  Richardson,  64,  256. 
Richardson  v.  Tolman,  468. 
Richey  v.  Guild,  471. 
Richman  v.  Donnell,  215. 
Richmond  v.  Irons,  245. 
Ricker  v.  Powell,  355. 
Rickle  V.  Dow,  327. 
Ricks  V.  Broyles,  394. 
Riddick  v.  Long,  114. 
Riddle  v.  Whitehill,  254. 
Rider  v.  Bagley,  387. 
Ridgeley  v.  Bond,  273. 
Riggs  V.  Armstrong,   214. 
Riggs  V.  Johnson,  400. 
Riggs  V.  Lockwood,  327. 
Riley  v.  Emerson,  344. 
Riley  v.  Hodgkins,  31. 
Rindge  v.  Baker,  445. 
Ringgold  V.  Patterson,  239. 
Ringgold  V.  Stone,  184. 
Riopelle  v.  Doellner,  74,  93. 
Ripson  V.  Hart,  431. 
Ritchie  V.  Burke,  353. 
Ritchie  v.  McMullen,  194,  249,  251, 

258. 
Ritson  V.  Dodge,  338. 
Ritter  v.  Ritter,  421. 
Roach  V.  Glos,  308. 
Robards  v.  Clayton,  377. 
Roby  V.  Chicago,  etc.  Co.,  101. 
Roberts  v^.  Madocks,  145. 
Roberts  v.  Pipkin,  405. 
Roberts  v.  Railway  Co.,  499. 
Robertson  V.  Bullions,  431. 
Robertson  v.  Miller,  338. 
Robertson  v.  Schwenk,  238. 
Robertson  v.  Wheeler,  427. 
Robertson  v.  "Wright,  163. 
Robinson  v.  Baugh,  68. 


Robinson  v.  Cathcart,  80. 

Robinson  v.  Fair,  410. 

Robinson  v.  Fife,  476. 

Robinson  v.  Kunkleman,  130. 

Robinson  v.  Robinson,   416. 

Robinson  v.  Sharp,   423. 

Robrecht  v.  Robrecht,  403,  406. 

Robson  V.  Dodds,  400. 

Robson's  Appeal,  485. 

Roche  V.  Marvin,  464. 

Roche  V.  Morgell,  134,  17& 

Rock  V.  Slade,  56. 

Roddy  V.  Brick,  460. 

Rodenbarger  v.  Bramblett,  400. 

Rodgers  v.  Rodgers,  255. 

Rogers  v.  De  Forest,  247. 

Rogers  V.  Mitchell,   238. 

Rogers  v.  Reissner,  222. 

Rogers  v.  Rogers,  252. 

Rogers  v.  Taylor,  432. 

Rogers  v.  Traders'  Mfg.  Co.,  52. 

Rogers,  etc.  Works  v.  Erie,  etc. 

Co.,  401. 
Roland  Park  Co.  v.  Hull,  399. 
Rolfe  V.  Burnham,  388. 
Rollins  V.  Henry,  335,  389. 
Roorbach  v.  Lord,  64. 
Root  V.  Woolworth,  265. 
Roper  V.  McCook,  388. 
Roscarrick  v.  Barton,  480. 
Rose  V.  Woodruff,  98.  327. 
Ross  V.  Leavitt,  481. 
Ross  V.  Ramsey,  413. 
Rosse  V.  Rust,  318. 
Roth  V.  Roth,  38,  87. 
Roundtree  v.  McKay,  493. 
Rowan  v.  Runnels,  312. 
Rowe  V.  Tede,  139,  167. 
Rowley  v.  Ridley,  97. 
Rowley  V.  Towsley,  418. 
Royce  v.  Latshaw,  315. 
Royle  V.  Jones,  365. 
Rozek  V.  Redzinski,  483. 
Rozier  v.  Griffith,  412. 
Ruddy  V.  Myton,  401. 
Rudolph  V.  Covell,  430. 
Ruegger  v.  Indianapolis,  etc.  Ry. 

Co.,  146. 


TABLE    OF    CASES    CITED. 


1X1 


References  are-  to  sections. 


Ruff  V.  Doty,  477. 

Rumfelt  V.  Canal,  etc.  Co.,  362. 

Rummey  v.  Detroit,  etc.  Co.,  388. 

Ruppel  V.  Missouri,  etc.  Co.,  12. 

Russell  V.  Clark,  327. 

Russell  V.  Clark's  Ex'rs,  49. 

Russell  V.  Craig,  273. 

Russell  V.  East    Anglian    Ry.    Co., 

396. 
Russell  V.  Farley,  405. 
Russell  V.  Martin,  250. 
Russell  V.  Tailor,  445. 
Russell  V.  Waite,  337. 
Russia  Cement  Co.  v.  Lepage,  400. 
Rutland  v.  Paige,  214. 
Ryan  v.  Bibb,  441. 
Ryan  v.  Duncan,  184. 
Ryan  v.  Shawneetown,  114. 
Ryer  v.  Fletcher-Ryer  Co.,  411. 
Ryerson  v.  Eldred,  332. 
Ryman  v.  Ryman's  Ex'rs,  455. 
Ryon  V.  Loveless,  436. 
Sackner  v.  Sackner,  468. 
Sadler  v.  Taylor,  51. 
Safe  Deposit  Trust  Co.  v.  Baker, 

11. 
Safe  Deposit,  etc.  Co.  v.  City  of 

Anniston,  399. 
Sage  V.  Mosher,  493. 
Sage  V.  Railway  Co.,  491. 
Sager  v.  Tupper,  478. 
Sager  Mfg.  Co.  v.  Smith,  392. 
Saginaw,  etc.  Ry.  v.  Wildman,  399. 
Sagory  v.  Bayless,  332. 
Salisbury  v.  Miller,  256. 
Salsbury  v.  Ware,  208. 
Salter  v.  Sutherland,  64. 
Saltmarsh  v.  Bowen,  183. 
Saltus  V.  Tobias,  134. 
Salvidge  v.  Hyde,  61. 
Sanborn  v.  Adair,  132. 
Sanborn  v.  Osgood,  468. 
Sanborn  v.  Sanborn,  55,  246^, 
Sanders  v.  Godley,   77. 
Sanders  v.  King,  134. 
Sanders  v.  Village     of     Riverside, 

428. 
Sandford  V.  Cahoon,  481. 


Sandford  V.  Flint,  478. 
Sandford  v.  McLean,  448. 

Sandford  v.  Sinclair,  390,  490. 

Sandford  v.  Wright,  492. 

Sands  v.  E.    S.    Greeley,    etc.    Co., 
395. 

Sands  v.  Hildreth,  497. 

Sandusky  v.  Faris,  196,   200,   204, 
406. 

San  Francisco,  etc.  Soc.  v.  Thomp- 
son, 343. 

Sanger  v.  Nightingale,  477. 

Sanxay  v.  Hunger,  425. 

Sarbar  v.  Rankin,  399. 

Satterfield  v.  Speir,  419,  420. 

Satterlee  v.  Kobbe,  411. 

Savage  v.  Johnson,  341,  347. 

Savage  v.  Worsham,  31,  257. 

Savannah  v.  Jesup,  359. 

Savings  Bank  v.  Asbury,  462. 

Savings  Bank  v.  Taylor,  418. 

Savings,    etc.    Soc.    v.    Davidson, 
208. 

Sawyer  v.  Campbell  et  al.,  234. 

Sawyer  v.  Hovey,  417. 

Sawyer  v.  Moyer,  490. 

Sawyers  v.  Sawyers,  421. 

Scanlan  v.  Scanlan,  183. 

Schack  v.  McKey,  387. 

Scheerer  v.  Goodwin,  317. 

Schenck  v.  Peay,  224. 

Schilb  V.  Moon,  451. 

Schilcer  v.  Brock,  191. 

Schlecht's  Appeal,  387. 

Schmidt  v.  Braley,  270. 

Schmidt  v.  Louisville,  etc.  Ry.  Co., 
401,  431. 

Schoenpflug  v.  Ketcham,  101. 

Schofield  V.  Coal,  etc.  Co.,  491. 

Scholfield  V.  Pope,  363. 

School  District  v.  McCloon,  250. 

Schooner  v.  Bright,  399. 

Schoonmaker  v.  Bonnie  et  al.,  431. 

Schrimper    v.    Chicago,    etc.    Ry. 
Co.,  421. 

Schryver  v.  Teller,  474. 

Schultz  V.  Insurance  Co.,  194,  204. 

Schuyler  v.  Booth,  451. 


Jtll 


TABLE    OF    CASES    CITED. 


References  are  to  sections. 


Schwartz  v.  Costello,  334. 
Schwartz  v.  Sears,  209,  210,  322. 
Schwartz  v.  Wendell,  164,  165,  207, 

209. 
Scofield  V.  Lansing,  60. 
Scott  V.Cook,  308. 
Scott  V.  Cox,  390. 
Scott  V.  Lalor,  211. 
Scott  V.  Neeley,  491. 
Scott  V.  Rand,  437. 
Scott  V.  Rayment,  454. 
Scott  V.  Surman,  153. 
Scott  V.  Wallace,  388. 
Scovill  V.  Seeley,  111. 
Sea  Ins.  Co.  v.  Day,  472. 
Seals  V.  Robinson,  etc.  Co.,  31. 
Seaman  v.  Seaman,  408. 
Search  v.  Search,  26. 
Searle  v.  Chapman,  483. 
Sears  v.  Hardy,  49,  53. 
Sears  v.  Taylor,  411. 
Seaton  v.  Fiske,  469. 
Seattle,    etc.    Ry.    Co.    v.    Union 

Trust  Co.,  249. 
Sebom  v.  Beckwith,  257. 
Secombe  v.  Campbell,  138. 
Secor  V.  Singleton,  265. 
Security,  etc.  Ass'n  v.  Moore,  395. 
Security,  etc.  Co.  v.  Mattern,  466. 
Security,  etc.  Co.  v.  St.  Paul,  etc. 

Co.,  445. 
Seidenberg  v.  Davidson,  400. 
Seisler  v.  Smith,  316. 
Seldon  v.  Vermilya,  256. 
Selinger  v.  Myers,  483. 
Sengfelder  v.  Hill,  389. 
Sercombe  v.  Catlin,  395 
Seton  V.  Slade,  232. 
Settlemeir  v.  Sullivan,  84. 
Sewall  V.  Brainard,  290. 
Seymour  v.  Bowles,  418. 
Seymour  v.  Canandaigua,  etc.  Ry. 

Co.,  395. 
Seymour  v.  Delancy,  430,  431. 
Shaft  V.  Insurance  Co.,  289. 
Sharon  v.  Hill,  144. 
Sharon  v.  Terry,  281. 
Sharp  V.  Carlile,  186. 


Shaver  v.  Heller  &  Merz  Co.,  400. 
Shaw  V.  Allen,  425 
Shaw  V.Bill,   260. 
Shaw  V.  Chester,  380. 
Shaw  V.  Coster,  375,  376,  377,  379. 
Shaw  V.  Davis,  400. 
Shaw  V.  Hoadley,  327. 
Sheahan  v.  Judge  of  Wayne  Cir- 
cuit, 54,  59. 
Sheehy  v.  Mandeville,  97,  463. 
Sheerer  v.  Agee,  249. 
Sheerer  v.  Goodwin,  317. 
Sheets  V.  Railway  Co.,  83. 
Sheets  v.  Selden,  36. 
Sheffield,  etc.  Ry.  Co.  v.  Gordon, 

322. 
Shelden  v.  Wallbridge,  93. 
Sheldon  v.  Bradley,  460. 
Sheldon  v.  Hawes,  336. 
Sheldon  v.  Holmes,  468. 
Shellabarger,  etc.  Co.  v.  Willing, 

260. 
Shelton  v.  Farmer,  445. 
Shepard  v.  Murray,  etc.  Co.,  296. 
Shepard  v.  Shepard,  31. 
Shepard  v.  Wright,  86. 
Shepherd  v.  Ware,  85. 

Sheridan  v.  Cameron,  47. 

Sheridan  v.  Colvin,  400. 

Sheridan  Brick  Works   v.   Marion 
Trust  Co.,  388. 

Sherlock  v.  Village  of  Winnetka, 
114. 

Shermer  v.  Merrill,  447. 

Sherry  v.  Smith,  123. 

Shickle  v.  Watts,  489. 

Shields  v.  Barrow,  49, 177,  215,  257. 
327. 

Shields  v.  McClung,  406. 

Shiell  V.  M'Nitt,  400. 

Shingl^ur  v.  Swift,  115. 

Shipbrooke  v.  Hinchinbrook,  289. 

Shirley  v.  Rice,  418. 

Shook  v.  Proctor,  209. 

Shore  v.  Lucas,  489. 

Shorten  v.  Judd,  316. 

Shrewsbury   v.    Shrewsbury,    etc. 
Ry.  Co.,  398,  401. 


TABLE    OF    OASES    CITED. 


Lxiii 


References  are  .to  sections. 


Bhufelt  V.  Shufelt,  463. 
Sibert  v.  McAvoy,  418. 
Sichler  v.  Look,  468. 
Sill  V.  Ketcham,  467. 
Silva  V.  Garcia,  399. 
Silva  V.  Rankin,  399. 
Silvey  v.  Dowell,  445. 
Sims  V.  Smith,  428. 
Simers  v.  Saltus,  468. 
Simmons  v.  Taylor,  215. 
Simmons    Medicine    Co.    v.    Sim- 
mons, 400. 
Simons  v.  Milman,  145. 
Simpson  V.  Ennis,  447. 
Simpson  v.  Pittsburg,  etc.  Co.,  399. 
Simpson  v.  Simpson,    416. 
Sims  V.  Burk,  212. 
Singer,  etc.  Co.  v.  Domestic,  etc. 

Co.,  399. 
Singer  Mfg.  Co.  v.  June  Mfg.  Co., 

400. 
Sioux  City,  etc.  Ry.  Co.  v.  Trust 

Co.,  49. 
Skeele  v.  Stanwood,  492. 
Skinner  v.  Dayton,  454. 

Skip  V.  Hart,  447. 

Skip  V.  Harwood,  396. 

Slack  V.  Black,  117. 

Slack  V.  Wolcott,  278. 

Slater  v.Breese,  467,  474. 

Slater  V.  Maxwell,  239. 

Slater  v.  Sutherland,  64. 

Slemmer's  Appeal,  454. 

Slingluff  V.  Gainer,  83. 

Sloan  V.  Moore,  388,  455. 

Sloan  V.  Whiteman,  350. 

Sloo  T.  Law,  400. 

Small  V.  Boudinot,  38. 

Smallwood  v.  Lewin.  270. 

Smiley  v.  Wright,  408. 

Smith  V.  Austin,  33,  448,  475,  478. 

Smith  V.  Babcock,  248,  251,  270. 

Smith  V.  Bank,  60. 

Smith  V.  Barrie,  400. 

Smith  V.  Bates  Machine  Co.,  9. 

Smith  V.  Blake,  132. 

Smith  V.  Brittenham,  52,  117. 

Smith  V.  Brown,  304. 


Smith  V.  Butcher,  385. 
Smith  V.Clay,  151. 
Smith  V.  Cuddy,  421. 
Smith  V.  Fitchett,  388. 
Smith  V.  Fitting,  468. 
Smith  V.  Gardner,  399. 
Smith  V.  Harrison,  446. 
Smith  V.  Henry  Co.,  110. 
Smith  V.  Lathrop,  146. 
Smith  V.  Life  Ins.  Co.,  444. 
Smith  V.  Mathews,  428. 
Smith  V.  McDowell,  197. 
Smith  V.  McNeal,  158. 
Smith  V.  Newton,  468. 
Smith  v.  Railway  Co.,  394,  492. 
Smith  V.  Reynolds,  110. 
Smith  V.  Rock,  399. 
Smith  V.  Saginaw  City  Bank,  327. 
Smith  V.  St.  Louis  Mutual,  etc.  Co., 
182. 

Smith  V.  Shay,  475. 

Smith  V.  Smith,  400,  405,  410,  416, 
418. 

Smith  V.  Sneed,  335. 

Smith  V.  Thompson,  488,  496,  497. 

Smith  V.  Trimble,  328. 

Smith  V.  Valence,  480. 

Smith  V.  Williams,  50,  53. 

Smith  et  al.  v.  Roten  et  al.,  50. 

Snodgrass  v.  Butler,  372,  380. 

Snook  v.  Pearsall,  132. 

Snook  V.  Zentmyer,  478. 

Snow  V.  Pressey,  475. 

Snyder   v.    Ft.   Madison,   etc,  Ry. 
Co.,  401. 

Snyder  v.  Grandstaff,  40. 

Society  v.  Watson,  345. 

Solomon  v.  Kirkwood,  454. 

Solt  V.  Anderson,  434. 

Somerby  v.  Buntin,  117. 

Soule  V.  Hough,  85. 

Southern  Bldg.   &  Loan  Ass'n  v. 
Carey,  298. 

Southern  Bldg.  &  Loan  Ass'n  y. 
Price,  395. 

Southern     Development     Co.     v. 
Houston,  etc.  Ry.  Co.,  394. 

Southern  Exp.  Co.  v.  Ensley,  400. 


Ixiv 


TABLE    OF   CASES    CITED. 


References  are  to  sections. 


Southern  Life,  etc.  Co.  v.  Lanier, 

132. 
Southern  Pac.  Ry.  Co.  v.  Temple, 

337. 
Southern  Ry.  Co.  v.  Franldin,  etc. 

Ry.  Co.,  399,  431. 
Southern  Ry.  Co.  v.  United  States, 

237. 
Souzer  v.  De  Meyer,  120,  138,  141. 
Spargur  v.  Hall,  468. 
Sparhawk  v.  Union  Pac.  Ry.  Co., 

398. 
Spaulding  v.  Farwell,  183. 
Spear  v.  Hadden,  465,  467,  468. 
Spears  v.  Cheatam,  101. 
Speer  v.  Speer,  411. 
Speights  V.  Peters,  388. 
Speiglemyer,  Adm'r,  v.  Crawford, 

493. 
Spence  v.  Duren,  402. 
Speyrer  v.  Miller,  405. 
Spicer  v.  Waters,  168. 
Spier  et  al.  v.  Robinson,  280. 
Spikes  V.  Brown,  464. 
Spiller  V.  Spiller,  406. 
Spinney  v.  Spinney,  85. 
Spofford  V.  Manning,  185,  238. 
Sprague  v.  Rhodes,  117. 
Sprague  v.  Soule,  370. 
Sprague  V.  West,  380. 
Springer  v.  Law,  473. 
Springer  v.  Springer,  358. 
Spurgin  v.  Adamson,  477. 
Squire  v.  Hewlitt,  254. 
St.  John  V.  Turner,  480. 
St.  Louis,  etc.  v.  Knapp,  26. 
St.  Louis,  etc.  Co.  v.  Alliance,  etc. 

Co.,  377,  382. 
St.  Louis,  etc.  Co.  v.  Geppart,  465. 
St.  Louis,  etc.  Ry.  Co.  v.  Camden 

Bank,  163. 
St.  Louis,  etc.  Ry.  Co.  v.  Southern 

Express  Co.,  359. 
Staacke  v.  Bell,  464. 
Stackpole  v.  Hancock,  307. 
Stadler  v.  Hertz,  67. 
Stafford  v.  Brown,   196,   290. 
Stafford  et  al.  v.  Howlett,  260,  263. 


Stafford  v.  Hulbert,  497. 
Stafford  V.  Mott,  493. 
Staffords  v.  King,  405. 
Stahlv.  Dehm,  460. 
Stahl  V.  Hammontree,  468. 
Stamford  Bank  v.  Benedict,  450. 
Standard    Fashion    Co.    v.    Siegel- 

Cooper  Co.,  400. 
Stanton  v.  Embrey,  146. 
Starbird  v.  Eaton,  344.     ^ 
Stark  V.   Capitol   City  Dairy  Co.. 

399. 
Stark  et  al.  v.  Brown  et  al.,  211. 
Starling  v.  Brown,  377. 
Starr  v.  Ellis,  447. 
State  V.  Chittenden,  302. 
State  V.  Lorenz,  419. 
State  V.  Martin,  83. 
State  V.May,  399. 
State  V.  Mitchell,  257. 
State  V.  Murphy,  106. 
State  V.  New  Orleans,  etc.  Co.,  401. 
State  V.  North     Central     Ry.     Co., 

395. 
State  V.  Orwig,  361. 
State  V.  Richmond,  158. 
State  V.  Saunders,  400. 
State  V.Williams,  38. 
State  ex  rel.  Fields  v.  Cryts,  482, 

483. 
State  Bank  V.  Bank,  287,  289. 
State  Bank  v.  Belk,  486. 
State  Bank  v.  Roche,  482. 
Staude  v.  Keck,  114. 
Stead  V.  Course,  176. 
Stealman  v.  Greenwood,  83. 
Steamgauge,  etc.  Co.  v.  Meyrose, 

158. 
Stebbins  v.  Timm,  365. 
Steele  v.  Walker,  391. 
Steen  v.  March,  351. 
Steere  v.  Hoagland,  489. 
Steff  V.  Andrews,  135,  176. 
Steigerwait  v.  Rife,  9. 
Steinbach  v.  Hill,  421. 
Stenton  v.  Jerome,  163. 
Stephens  v.  Soule,  434. 
Stephens  v.  Van  Buren,  101. 


TABLE    OF    CASES    CITED. 


Ixv 


References  are  to  sections. 


Stephenson  v.  Davis,  113. 
Stephenson  v.  Kilpatrick,   481. 
Stephenson  v.  McClintock,   440. 
Stephenson  v.  Stephenson,  331. 
Sterling  v.  Forrester,  445. 
Sternberg  v.  Wolff,  388. 
Sterns-Rogers  Mfg.  Co.  v.  Brown, 

400. 
Stetson  V.  Hopper,  494. 
Stevens  v.  Land,  etc.  Co.,  57. 
Stevens  v.  Missouri,   etc.   Co.,  401. 
Stevens  v.  Whitehead,  493. 
Stevenson  v.  Austin,   50,   53. 
Stevenson  v.  Kurtz,  271. 
Steward  v.  Stevens,  488,  497. 
Stewart  v.  Taylor,  361. 
Stewert  v.  Groce,  473. 
Stiles  V.  Cain,  434. 
Stille  V.  Hess,  31. 
Stillwell  V.  Hamm,  479. 
Stimson  v.  Lewis,  53. 
Stine  V.  Hayes,  418. 
Stinson  v.  Gardiner,  111. 
Stinson  v.  Hildrup,  67. 
Stith  V.  Fullinwider,  262. 
Stockhouse  v.  Barnstone,  169. 
Stockton  v.  American  Tobacco  Co., 

265. 
Stockton  V.  Central  Ry.  Co.,  400. 
Stockton  V.  Williams,  337,  426,  428. 
Stockton,  etc.  Soc.  v.  Harrold,  215, 

470. 
Stockwell  V.  Fitzgerald,  9. 
Stoddard  v.  Burge,  428. 
Stokes  V.  Famsworth,  183. 
Stone  V.  Reed,  372,  377,  380. 
Stone  V.  Welling,  88. 
Stoors  V.  Barker,  418. 
Storm  V.  Waddell,  498,  499. 
Storms  V.  Storms,  237. 
Stout  V.  Shew,  251. 
Stoutenburgh  v.  Tompkins,  300. 
Stow  V.  Russell,  110. 
Stow  V.  Schiefferly,  467. 
Stowell  V.  Tucker,  12. 
Stradley  v.  Circuit  Judge,  337. 
Strange  v.  Richmond  Ry.  Co.,  131. 
Stratton  v.  Land,  etc.  Co.,  428. 


Strauss  v.  Bendheim,  436. 
Strawberry   Valley   Cattle   Co.   v. 

Chipman,  399. 
Street  v.  Rigby,  166. 
Streight  v.  Junk,  492. 
Stribling  et  ux.  v.  Hart,  337. 
Strong  V.  Clem,  408. 
Stroup  V.  Chalcraft,  108. 
Stroupe  V.  Bridges,  421. 
Strouse  v.  Elting,  155. 
Strump  V.  Reger,  428. 
Stuart  V.  Stewart  Co.,  400. 
Sturbuck  v.  Loan  Co.,  110. 
Sturgis  V.  Fay,  86. 
Stutsman  County  v.  Wallace,  312. 
Styles  V.  Tyler,  358. 
Suburban,  etc.  Co.  v.  Naugle,  403. 
Sullings  V.  Goodyear  Co.,  403. 
Sullivan  v.  Judah,  396. 
Sullivan  v.  Phillips,  115. 
Sullivan  v.  Portland,  etc.  Ry.  Co., 

184. 
Sullivan  v.  Rabb,  399. 
Sullivan  v.  Royer,  317. 
Sun,  etc.  Ass'n  v.  Buck,  467. 
Supervisors   v.   Railway  Co.,   197. 
Suplee  V.  Callaghan,  388. 
Supreme  Ct.  etc.  v.  Supreme  Ct. 

etc.,  406. 
Supreme  Lodge,  etc.  v.  Raddatz, 

377. 
Supreme  Lodge,  etc.  v.  Simering, 

400. 
Surine  v.  Winterbotham,  465. 
Sutcliffe  V.  The  State,  15. 
Sutliff  V.  Dayton,  431. 
Sutton  V.  Head,  400. 
Suydam  v.  Bartle,  238. 
Suydam  v.  Northwestern  Ins.   Co., 

489. 
Suydam   et  al.    v.   Trusdale,   269, 

270. 
Swain  v.  Knapp,  163. 
Swanson  v.  Kirby,  400. 
Swayze  v.  Swayze,  114. 
Swearingen  v.  Lahner,  462. 
Sweeney  v.  Kaufmann,  462. 
Sweeney  v.  O'Hara,  430. 


Ixvi 


TABLE    OF    CASES    CITED. 


References  are  to  sections. 


Sweeney  v.  Williams,  9. 

Sweet  V.  Converse,  115,  121,  124. 

Sweezy  v.  Collins,  46?. 

Swift  V.  Eckford,  61,  247. 

Swihart  v.  Shaum,  490. 

Sylvester  v.  Hubley,  344. 

Tabler  v.  Castle,  332. 

Tabor  V.Cook,  426. 

Tabor  v.  Hoffman,  400. 

T.  &  A.  Ry.  Co.  V.  Railway  Co.,  68. 

Taintor    v.    Franklin    Nat.    Bank, 

322. 
Tait  V.  Am.  etc.  Co.,  425,  451. 
Talcott  V.   Grant  Wire   &   Spring 

Co.,  499. 
Tallmadge  v.  Bank,  400. 
Talmage  v.  Pell,  218,  220,  269. 
Tanenbaum  v.  New  York  Fire  Ins. 

Exch.,  400. 
Tankersly  v.  Pettis,  343. 
Tapley  v.  Goodsell,  330. 
Tappan  v.  Boston,  etc.,  228. 
Tappan  v.  Evans,  261,  388,  463,  492. 
Tappan  v.  Grey,  400. 
Tarbell  v.  Millard,  497. 
Tarlton  v.  Vietes,  237. 
Tartar  v.  Gibbs,  132. 
Tate  v.  Fields,  189,  327. 
Tate  v.  Wyatt,  235. 
Tavenner  v.  Barrett,  51. 
Tawas,    etc.    Ry.    Co.    v.    Circuit 

Judge,  406,  487. 
Taylor  V.  Bowker,  486. 
Taylor  v.  Dillenburg,  477. 
Taylor  V.  King,  39,  114. 
Taylor  v.  Morrison,    445. 
Taylor  v.  Ormsby,  85. 
Taylor  v.  Perkins,  487. 
Taylor  v.  Street  Ry.  Co.,  53,  60. 
Taylor  v.  Taintor,  400. 
Taylor  V.  Taylor,  112. 
Taylor  v.  Whitmore,  465. 
Tazewell,  etc  v.  Whittle's  Adm'r, 

155. 
Tedder  v.  Stiles,  256,  327. 
Tenbrook  v.  Jessup,  408. 
Tennant  v.  Dunlop,  257. 
Tennent  v.  Battey,  492. 


Tenney  v.  State  Bank,  184. 
Tenn.  Ice  Co.  v.  Raine,  327. 
Terhune  v.  Coltcn,  233. 
Ter  Knile  v.  Riddick,  31. 
Terry  v.  McLure,  253. 
Thain  v.  Rudisill,  328. 
Thallmann  v.  Tbomas,  365. 
Thames,    etc.    Co.    v.    Rembert's 

Adm'r,  497. 
Thayer  v.  Goddard,  344. 
Thayer  V.  Lane,  130,  331,  410,  413. 
Thayer  V.  Swift,  388,  488,  489. 
The  Davis,  58. 
The  Palmyra,  362. 
The  Siren,  58. 
Thebus  v.  Smiley,  445. 
Theison  v.  Watts,  430. 
Third   Nat.   Bank   v.    Skillings  et 

al.,  372. 
Thomas  v.  Doub,  270. 
Thomas  v.  Farley,  4G. 
Thomas  v.  Graham,  172. 
Thomas  v.  Harvie,  348,  355. 
Thomas  v.  Oakley,  399. 
Thomas  v.  Thomas,  408. 
Thomason  v.  Neeley,  219,  225. 
Thompson  v.  Andrus,  400. 
Thompson  v.  Diffenderfer,  390. 
Thompson  v.  Ebbets,  371. 
Thompson  v.  Geary,  405. 
Thompson  v.  Goulding,  333,  341. 
Thompson  v.  Hardman,  416. 
Thompson  v.  Lynan,  471. 
Thompson  v.  Maxwell,  343. 
Thompson  v.  Morley,  443. 
Thompson  v.  Parker,  117. 
Thompson  v.  Perrine,  312. 
Thompson  v.  White,  323. 
Thompson  v.  Wooster,  98. 
Thompson  v.  Yates,  489. 
Thoms  V.  King,  87. 
Thomson  v.  Brooke,  359. 
Thomson  V.  Wooster,  98,  101,  327. 
Thomson-Houston  Electric  Co.  v. 

Exeter,  etc.  Co.,  400. 
Thorn  v.  Germand,  264. 
Thorn  v.  Thorn,  421. 
Thornton  v.  Bank,  387. 


TABLE   OF   CASES   CITED. 


Ixvii 


Eeferences  are,  to  sections. 


Thornton  v.  Roll,  399. 
Threefoot  v.  Hillman,  469. 
Throckmorton  v.  Pence,  411. 
Thurston  v.  Big,  etc.  Co.,  215. 
Tickle  V.  Short,  163. 
Tiede  v.  Schneidt,  400. 
Tiffany  v.  Bowerman,  263. 
Tiffany  v.  Tiffany,  421. 
Tigard  v.  Moffitt,  399. 
Tilgham  v.  Werk,  341. 
Tillinghast  v.  Champlin,  251. 
Tindal  v.  Drake,  411. 
Tinkler  v.  Swaynie,  400. 
Titcomb  v.  Vantyle,  316. 
Title,  etc.  Co.  v.  Weiher,  466. 
Tobey  et  al.  v.  Foreman,  214. 
Todd  V.  Daniel,  360. 
Todd  V.  Munson,  443. 
Todd  V.  Ogleby,  452. 
Toledo   &  Ann  Arbor  Ry.   Co.  v. 

Detroit,  etc.  Ry.  Co.,  399. 
Toledo,  etc.  Ry.  Co.  v.  Pa.  Co.  et 
al.,  401. 

Toles  V.  Johnson,  38. 

Tompkins   v.   Hollister,    177,    256, 
468. 

Tompkins  v.  Ward,  443. 

Tompkins  v.  Wiltberger,  98. 

Toms  V.  Railway  Co.,  86. 

Toms  V.  Williams,  59. 

Tooker  v.  Slosson,  229. 

Torrans  v.  Hicks,  85. 

Torrent  v.  Booming  Co.,  425. 

Torrent  V.  Hamilton,  39,  61,  114. 

Torrent  v.  Rogers,  192. 

Toulmin  v.  Reid,  382. 

Towle  V.  Pierce,  50. 

Towles  V.  Edwards,  468. 

Town  V.  Alexander,  465,  468. 

Town  of  Mason   v.    Ohio,    etc.   Ry. 
Co.,  400. 

Town  of  Mentz  v.  Cook,  183. 

Town  of  Mt.   Morris  v.   King,  117. 

Town    of    North     Hempstead     v. 
Gregory,  26. 

Town  of  Springport  v.  Sav.  Bank, 
425. 

Town  of  Sullivan  v.  Phillips,  60. 


Town  of  Venice  t.  Woodruff,  423. 
Townsend  v.  Graves,  314. 
Townshend  v.  Williams,  425. 
Township  v.  Blanchard,  431. 
Township  v.  Burch,    67. 
Tracewell  v.  Boggs  252. 
Trader  v.  Jarvis,  253. 
Traphagen  v.  Voorhees,  345,  347. 
Treadwell  v.  Brown,  500. 
Treat's  Appeal,  437. 
Treiber  v.  Shafer,  219. 
Tremolo  Patent,  246. 
Tremper  v.  Brooks,  123. 
Trenton,  etc.  Co.  v.  Rossell,  317. 
Trenton  Pass.  Ry.  Co,  v.  Wilson, 

126. 
Trimble  v.   American   Sugar  Ref. 

Co.,  110. 
Triplett  v.  Gill,  98. 
Tripp  V.  Vincent,  337. 
Trowbridge  v.  Stone's  Adm'r,  154. 
Troy,  etc.  Bank  v.  Bowman,  467. 
Trull  V.  Trull,  442. 
Truman  v.  Love,  9. 
Trust,    etc.    Co.    v.    Spartenburg, 

etc.  Co.,  388. 
Trust  &  Fire  Ins.  Co.  v.  Jenkins, 

256. 
Trustee  v.  Hunting,  438. 
Tryon  v.  Sutton,  250. 
Tubeworks  v.  Ballou,  490. 
Tuck  V.  Calvert,  447. 
Tucker  v.  Bean,  49. 
Tucker  v.  Harris,  158. 
Tucker  v.  Lake,  464. 
Tucker  v.  Madden,  419. 
Tufts  V.  Tufts,  336. 
Tunno  v.  Robert,  98. 
Turner  v.  Berry,  350,  356. 
Turner  v.  Hodgson,  333. 
Turner  v.  Jenkins,  102. 
Turnpike  Co.  v.  Ferree,  380. 
Turrell  v.  Byard,  184. 
Tutwiler  v.  Dugger,  458. 
Tye  V.  Catching,  402 
Tyler  v.  Daniels,  440,  443. 
Tyler  v.  Peatt,  490. 
Tyson  v.  Decatur,  etc.  Co.,  132. 


Lxviii 


TABLE   OF   OASES    CITED. 


Beferences  are  to  sections. 


Ulmen  v.  laeger,  110. 
Underwood  v.  Hitchcox,  430. 
Union  Bank  v.  Barker,  187. 
Union    Branch,    etc,    Ry.    Co.    v. 

East  Tenn.  etc.  Ry.  Co.,  133. 
Union    Central    Life    Ins.    Co.    v. 

Phillips,  11. 
Union,  etc.  Co.  v.  Bonnell,  463. 
Union,  etc.  Co.  v.  Curtis,  463. 
Union  Mills,  etc.  Co.  v.  Dangberg, 

50,  57. 
Union  Sav.  etc.  Co.  v.  Ahrens,  362. 
Union  Sewer  Pipe  Co.  v.  Olson,  35. 
Union   Street  Ry.   Co.   v.   City  of 

Saginaw,  213. 
Union   Switch,   etc.   Co.   v.   Phila- 
delphia, etc.  Ry.  Co.,  285. 
Union  Trust  Co.  v.  Atchison,  etc. 

Ry.  Co.,  395. 
Union   Trust   Co.   v.    Illinois,   etc. 

Co.,  388. 
Union  University  v.  Green,  401. 
United  Ry.  Co.  v.  Long  Dock  Co., 

251,  270. 
United  States  v.  Beebe,  114. 
United  States  v.  Clark,  58. 
United  States  v.  Crosby,  312. 
United  States  v.  Ferguson,   309. 
United  States  v.  Fields,   271. 
United    States    v.    Freight    Ass'n, 

308. 
United  States  v.  Guglard,    399. 
United  States  v.  Rowland,  493. 
United  States  v.  Hughs  et  al.,  20. 
United  States  v.  Pratt,  30. 
United  States  v.  Seaman,   401. 
United  States    v.     Throckmorton, 

345. 
United   States  v.  Union   Pac.   Ry. 

Co.,  20,  400. 
United  States  v.  Wonson,  358. 
United  States  v.  Yates,  92. 
United  States  Mineral  Wool  Co,  v. 

Manville,  etc.  Co.,  39. 
Updegraff  v.  Crans,  400. 
Updike  V.  Adams,  416. 
LTpdike  V.  Parker,  328. 
Upham  V.  Wyman,  153. 
Utica  Ins.  Co.  v.  Lynch,  183,  202. 


Vail  V.  Arkell,  212. 

Vail  V.  Hammond,  491. 

Vail's  Ex'rs  v.  Railway  Co.,  108. 

Van  Cleef  v.  Sickles,  493. 

Van  Courtlandt  v.  Beekman,  183, 

413. 
Vandeford  v.  Stovall,  62. 
Vanderpool  v.  Notley,  489,  495. 
Vanderveer  v.  Holcomb,  221. 
Vanderveer  v.  Striker,  489. 
Vanderveer's   Adm'x   v.   Holcomb, 

325. 
Van  Dyke  v.  Davis,  304. 
Van  Dyne  v.  Vreeland,  117. 
Van  Hise  v.  Van  Hise,  39,  114. 
Van  Hook  v.  Pendleton,  315,  316. 
Van  Hook  v.  Whitlock,  155,  184. 
Van  Houten  v.  McKelway,  439. 
Van  Meter  v.  Van  Meter,  324. 
Vann  v.  Bennett,  388. 
Van  Orden  v.  Van  Orden,  123. 
Van  Reimsdyke  v.  Kane  et  al.,  58. 
Van  Rensselaer  v.  Brice,  202. 
Van  Riper  v.  Claxton,  250. 
Van  Schroder  v.  Brittain,  186. 
Van  Slyke  v.  Hyatt,  285. 
Van  Valtenburg  v.  Alberry,  220. 
Van  Wert  v.  Chidester,  475. 
Van  Winkle  v.  Owen,  377. 
Varick  v.  Dodge,  135,  176. 
Varick  v.  Edwards,  260,  263. 
Varian  v.  Barrian,  377. 
Varney  v.  Pope,  398 
Vary  v.  Shea,  418. 
Vaughn  v.  Nims,  473. 
Vaughn  v.  Williams,  97. 
Vaupell  v.  Woodward,  184. 
Veal  V.  Veal,  443. 
Vegelahn  v.  Gunter,  400. 
Veghtc  V.  Water  Power  Co.,  131. 
Veile  V.  Blodgett,  208. 
Vermilyea  v.  Fulton  Bank,  191. 
Vermont,  etc.  Co.  v.  Bank,  246. 
Vermont,  etc.  Ry.  Co.  v.  Vermont, 

etc.  Ry.  Co.,  388. 
Vernon  v.  Blackerby,  50. 
Verplanck  v.   Insurance   Co.,   247, 

255,  384,  390,  394. 
Verplank  et  al.  v.  Caines,  108. 


TAr.LE    OF    CASES    CITED. 


Ixix 


References  are  to  sections. 


Vigers  v.  Lord  Aiidley,  265. 
Village  of  Grandville  v.  Jenison, 

61. 
Vincent  v.  Moore,  32. 
Vinton  v.  King,  468. 
Virginia,  etc.  Co.  v.  Home  Ins.  Co., 

400. 
Voak  V.  Nat.  Inv.  Co.,  262. 
Voorhees  v.  Bonestell,  38. 
Voshell    &   Heaton   v.    Hynson   et 

al.,  390. 
Vreeland  v.  Loubat,  466. 
Vroom  V.  Ditmas,  184. 
Vyvyan  v.  Vyvyan,  377. 
Wade  V.  Miller,  470. 
Wade  V.  Pulsifer,  145. 
Wadsworth  v.  Blake,  448. 
Wadsworth  v.  Lorenger,  475. 
Wagar  v.  Bowley,  303. 
Wagar  v.  Stone,  460. 
Wagner  V.  Cohen.  473. 
Wagnon  v.  Pease,  467. 
Wakefield  v.  Marr,  49. 
Wakeman  v.  Dodd,  184. 
Wakeman  v.  Kingsland,  370,   382. 
Walden  v.  Bodley,  177,  259,  318. 

Waldo  V.  Richter,  77. 

Waldo  V.  Waldo,  51. 

Walker  v.  Converse,  46. 

Walker  v.  Hallett,  260. 

AValker  v.  Hill's  Ex'rs,  184. 

Walker  v.  Jack,  196,  201. 

Walker  v.  Kelly,  431. 

Walker  v.  Locke,  117. 

Walker  v.  Powers,  60. 

Walker  v.  Walker,  247,  323,  414. 

Walker  v.  Whipple,  454. 

Walker  v.  Williams,  26,  33. 

Wall  V.  Mason,  449. 

Wall  &  Burnsides  v.  Hill,  408. 

Wallace  v.  Dunning,  145,  465,  467, 
468. 

Wallace  v.  Field,  238,  290,  291,  292. 

Wallace  v.  Harris,  9. 

Wallace  v.  Loomis,  388,  391,  471. 

Wallace  v.  McBride,  475. 

Wallace  v.  Wainwright,  437. 

Wallen  v.  Cummings,  298,  299. 


Wallen  v.  Moore,  470. 

Waller  v.  Shannon,  68. 

Walser  v.  Seligman,  489. 

Walsh  v.  Barney,  60. 

Walthall's  Ex'rs  v.  Rives,  etc.  Co., 

207. 
Ward  V.  Bank,  322. 
Ward  V.  Hollins,  493. 
Ward  V.  Jewett,  101,  322. 
Ward  V.  Pacific  Mut.  etc.  Co.,  395. 
Ward  V.  Petrie,  392. 
Ward  V.  Sebring,  224. 
Ward  V.  Swift,  396. 
Ward  V.  Whitfield,  261. 
Ware  v.  Salsbury,  301. 
Waring  v.  Robinson,  388. 
Waring  v.  Suydam,  120. 
Warner  v.  Everett,  469. 
Warner  v.  Juif,  338. 
Warner  v.  Schweitzer,  431. 
Warner  v.  Whittaker,  304. 
Warnock  v.  Harlow,  377. 
Warren  v.  Adams,  345. 
Warren  v.  Farmer,  40U. 
Warren  v.  Warren,  183. 
Warren,   etc.   Co.   v.   Clarion   Co., 
403. 

Washington  Ry.  Co.  v.  Bradleys, 
219. 

Water  Com'rs  v.  Detroit,  400. 

Watrous  v.  Allen,  400. 

Watson  V.  Conkling,  184. 

Watson  V.  Ferrell,  399. 

Watson  V.  Hinchman,  331. 

Watson  V.  Hopkins,  158. 

Watson  V.  Lyon  Brewing  Co.,  49. 

Watson  V.  Murray,  26. 

Watson  V.  Smith,  335. 

Watson  V.  Sutherland,  9. 

Watson  V.  Watson,  9. 

Watterson  v.  Miller,  406. 

Watts  V.  Frenche,  233. 

Watts  V.  Rice,  345,  347. 

Way  V.  Mullett,  477. 

Way-Cross    Ry.    Co.    v.    Southern 
Ry.  Co.,  401. 

Way] and  v.  Tucker,  445. 

Weatherbee  v.  Weatherbee,  84. 


Ixx 


TABLE    OF    CASES    CITED. 


References  are  to  sections. 


Weatherly  v.  Water  Co.,  388. 

Weaver  v.  Van  Akin,  442, 

Weaver  v.  Wilson,  468. 

Webb  V.  Hunt,  483. 

Webb  V.  Pell,  343,  356. 

Webb  V.  Shaftsbury,  444. 

Webb  V.  Vt.  etc.  Ry.  Co.,  441,  442. 

Webb  V.Webb,  42u. 

Webber  v.  Gage,  33. 

Webster  v.  Clark,  486. 

Webster  et  al.  v.  Harris  et  al.,  46. 

Webster  v.  Hitchcock,  359. 

Weed  V.  Smull  et  al.,  164. 

Weeden  v.  Hawes,  468. 

Weekes  v.  Sunset,  etc.  Co.,  38. 

Weeks  v.  Adamson,  344. 

Weeks  v.  Garvey,  447. 

Weightman  v.  Powell,  103. 

Weikel  v.  Gate,  374. 

Welch  V.  Welch,  337. 

Weller  v.  Summers,  476. 

Wells  V.  Chapman,  473. 

Wells  V.  Cruger,  106. 

Wells  V.  Mortgage  Co.,  77. 

Wells  V.  Wood,  269. 

Wells,   Fargo,   etc.   Co.   v.   Miner, 

372. 
Welsbach  Lt.  Co.  v.  Mahler,  308. 
Welsh  V.  Arnett,  252. 
Welsh  V.  Louis,  320. 
Welsh's  Appeal,  411. 
Wendell  v.  Crysler,  418. 
Wendell  v.  Van  Rensselaer,  50. 
Wenegar  v.  Bollenback,  301. 
Wenzel  v.  Milbury,  406. 
Wessell  V.  Sharp,  38. 
West  V.  Hall,  256. 
West  V.  M'Carty,  387. 
West  V.  Randall,  48. 
West  V.  Reynolds,  26. 
Westbrooke  v.  Comstock,  54. 
Westcott  V.  Cady,  280. 
Western  Ins.  Co.  v.  Insurance  Co., 

46. 
Western  Union  Tel.  Co.  v.  Rogers, 

400. 
Westervelt  v.  Ackerson,  285. 
Westmoreland,     etc.     Co.     v.     De 

Witt,  400. 


Weston  v.  Berkeley,  167. 
Weston  v.  Stoddard,  410. 
West  Pub.  Co.  v.  Co-Op.  Pub.  Co., 

400. 
West  Virginia,   etc.   Co.  v.  Vinal, 

212,  215. 
Wethered  v.  Elliott,  349. 
Wetherill  v.  Kein,  416. 
Whalen  v.  Stephens,  322,  453. 
Wharton  v.  Clements,  207. 
Wheeler  v.  Clinton  Canal  Bank,  9. 
Wheeler  v.  Foster,  467. 
Wheeler  v.  Gleason,  114. 
Wheeler  v.  Willard,  447. 
Whelan  v.  Osgoodby,  421. 
Whelan  v.  Sullivan,  246. 
Whetstone  v.  Whetstone,  56. 
Whipple  V.  Eddy,  316. 
Whipple  V.  Guile,  60,  116. 
Whit  V.  Ray,  64. 
Whitbeck  v.  Edgar,  115,  215. 
Whitbread  v.  Brockhurst,  134. 
Whitcomb  v.  Sutherland,  475. 
White  V.  Bower,  223. 
White  v.  Buloid,  212,  225. 
White  V.  Guthrie,  328. 
White  V.  Mackey,  471. 
White  V.  Morrison,  237. 
White  V.  Polleys,  483. 
White  V.  Port  Huron,  etc.,  418. 
White  V.  Walker,  335. 
White's  Heirs  v.  White's  Adm'rs, 

187. 
Whitehead  v.  Henderson,   447. 
Whitehead  v.  Sweet,  114. 
Whitehead  v.  Wooten,  386,  390. 
Whiteman    v.    Fayette    Fuel    Gas 

Co.,  401. 
Whiting  et  al.   v.   Bank,   341,   351, 

355. 
Whiting  v.  Mayor,  etc.,  130. 
Whitlock  v.  Duffield,  9,  184. 
Whitlock  v.  Willard,  411. 
Whitmarsh  v.  Campbell,  246 
Whitney  V.  Belden,  328. 
Whitney  v.  Mayo,  50. 
Whitney  v.  Whitney,  414. 
Whittemore   v.   Patten,   183,   197, 

202. 


TABLE    OF    CASES    CITED. 


Ixxi 


References  are  to  sections. 


Whyte  V.  Arthur,  225,  227. 
Widdecombe  v.  Childers,  438. 
Wiggan  V.  Mayor  of  New  York,  33. 
Wiggans  v.  Armstrong,  492. 
Wiggins  V.  McCoy,  359. 
Wight  V.  Downing,  210,  213. 
Wight  V.  Roethlisberger,  61. 
Wightman  v.  Powell,  103. 
Wilcher  v.  Robertson,  83. 
Wilcox  V.  Allen,  213,  463,  470. 
Wilcox  V.  Fairhaven  Bank,  450. 
Wilcox  V.  National  Bank,  392. 
Wilcox  V.  Kassick,  155. 
Wilcox  V.  Pratt,  433. 
Wilcox  V.  Wilcox,  362. 
Wiles  V.  Trustees,  etc.,  116. 
Wiley  V.  Mullen,  434. 
Wilhelm  v.  Lee,  463. 
Wilhelm's  Appeal,  256. 
Wilkin  V.  Wilkin,  412. 
Wilkins  v.  Gibson,  451. 
Wilkinson  v.  Bauerle,  309. 
Wilkinson  v.  Colley,  400. 
Wilkinson  v.  Kneeland,  106. 
Willamette  Iron  Works  v.  Oregon, 

etc.  Co.,  401. 
Willard  V.  Tayloe,  429,  430,  431. 
Willard  V.  Willard,  410. 
Williams  v.  Bankhead,  49,  50. 
Williams  v.  Breitling,  etc.  Co.,  400. 
Williams  v.  Cong.  Church,  210. 
Williams  v.  Corwin,  97,  98,  101. 
Williams  v.  Gibbes,  270. 
Williams  v.  Hagood,  33. 
Williams  v.  Hubbard,  126,  130,  388, 

486,  495,  500. 
Williams  v.  Huston,  418. 
Williams  v.  Leech,  433. 
Williams  v.  Matthews,  370,  380. 
Williams  v.  Morgan,  294. 
Williams  v.  Thompson,   104, 
Williams  v.  Weaver,  83. 
Williams'      Adm'r     v.      Welton's 

Adm'r,  86. 
Williamson  v.  Jones,  400,  411. 
Williamson  v.  Monroe,  11. 
Williamson  v.  Stone,  477. 
Willingham  v.  King,  33. 


Willis  V.  Jernegan,  164. 
Wilmarth  v.  Woodcock,  112,  130. 
Wilmer  v.  Atlantic,  etc.  Ry.  Co., 

395. 
Wilmerding,  etc.  Co.  v.  Mitchell, 

475. 
Wilson  V.  Addison,  491,  495. 
Wilson  V.  Carrico,  499. 
Wilson  V.  Castro,  50. 
Wilson  V.  City  Bank,  493. 
Wilson  V.  City  of  Wheeling,  359. 
Wilson  V.  Eggleston,  31,  33,  477. 
Wilson  V.  Green,  413. 
Wilson  V.  Greenwood,  455. 
Wilson  V.  Hill,  399. 
Wilson  V.  Maddox,  390. 
Wilson  V.  Smith,  416. 
Wilson  V.  Spring,  327. 
Wilson  V.  Railway  Co.,  86. 
Wilson  V.  Rankin,  394. 
Wilson  V.  Riddle,  316. 
Wilson  V.  Wilson,  154. 
Wilson  V.  Wolf,  471. 
Wilson  V.  Woodruff,  188. 
Wilt  y.  Electric  Co.,  392. 
Wilt  V.  Huffman,  237,  238. 
Winans  v.  Wilkie,  466. 
Winchester  v.  Winchester,  351. 
Windsor  v.  McVeigh,  286. 
Winebrenner  v.  Colder,  31. 
Windfall,  etc.  Co.  v.  Patterson,  400. 
Wineman  v.  Circuit  Judge,  376. 
Wing  V.  Fairhaven,  403. 
Wing  V.  Spaulding,  370,  379,  382. 
Wingate  v.  Haygood,  158. 
Wingo  V.  Hardy,  209. 
Winn  V.  Albert,  260. 
Winnipiseogee  Lake  Co.  v.  Young, 

122. 
Winslow  V.  Crowell,  250. 
Winslow  V.  Leland,  489. 
Winson  v.  Bailey,  187. 
Winston  v.  Mitchell,  250. 
Winter  v.  Kansas  City,  etc.  Ry. 

Co.,  422. 
Winter  v.  Montgomery,  362. 
Winters  v.  Rush,  441. 
Wiscart  et  al.  v.  Dauchy,  358. 


Ixxii 


TABLE   OF    CASES    CITED. 


Beferences  are  to  sections. 


Wise  V.  Twiss,  246. 

Wiseman  v.  Commissioners,  362, 

Wiser  v.  Blackly,  309,  341. 

Withers  v.  Carter,  486. 

Witters  v.  Bank,  395. 

Wolcott  V.  Standley,  441. 

Wolf  V.  Bank,  438,  443. 

Wolf  V.  Wolf,  187. 

Women's  Catholic  Order  of  For- 
esters V.  Haley,  108,  126. 

Wood  V.  Carpenter,  117. 

Wood  V.  Copper  Mines  Co.,  166. 

Woodv.  Keyes,  330. 

Wood  V.  Mann,  172,  297. 

Wood  V.  Truax,  261. 

Wood  V.  Trust  Co.,  448. 

Wood  V.  Turbush,  316. 

Wood  V.  Wood,  458. 

Woodard  v.  Bird,  213. 

Woodbury  v.  Marblehead,  etc.  Co., 
459. 

Woodcock  V.  Bennet,  45. 

Wooden  v.  Morris,  124. 

Woodruff  V.  Young,  61. 

Woodruff's  Ex'rs  v.  Brugh,  263. 

Woods  V.  Morrell,  41,  183. 

Woods  V.  Roberts,  166. 

Woodside  v.  Grafflin,  440. 

Woodward  v.  Jackson,  295. 

Woodworth  v.  Robb,  460. 

Woodworth  v.  Spring,  87. 

Woolsey  v.  Sunderland,  38. 

Wooster  v.  Woodhull,  331,  337. 


Worch  V.  Woodruff,  432. 

Worley  v.  Moore,  110. 

Wormer  v.  Waterloo,  etc.  Works, 

448. 
Wormley  v.  Wormley,  184. 
Worrall  v.  Eastwood,  463. 
Worth  V.  Piedmont  Bank,  396. 
Wright  V.  Dame,  31,  442. 
Wright  V.  Wright,  408. 
Wyattv.  Sweet,  211. 
Wyatt  V.  Thompson,  252. 
Wych  V.  Meal,  191. 
Wyckoff  V.  Schofield,  471. 
Wylie  V.  Coxe,  183. 
Wynne  v.  Alford,  246. 
Yates  V.  Law,  246. 
Yates  V.  Thompson,  209. 
Yates  V.  Tisdale,  382. 
Yates  V.  Woodruff,  473. 
York  V.  Circuit  Judge,  337. 
Youle  V.  Richards,  475. 
Young  V.  Cushing,  327. 
Young  V.  Keighly,  344. 
Young  V.  McKee,  209. 
Young  V.  Miller,  418. 
Young  V.  Rutan,  388. 
Young  V.  Twigg,  223. 
Young  V.  Young,  433. 
Youngblood  v.  Sexton,  60. 
Youngs  V.  Morrison,  494. 
Zahn  V.  McMillin,  327. 
Zane  v.  Cawley,  208. 


EQUITY  PLEADING  AND  PEACTICE 


CHAPTER  I. 


THE  JURISDICTION  OF  THE  EQUITY  COURT. 


§  1.  Legal  and  equitable  remedies. 

2.  History  of   equitable  jurisdic- 

tion. 

3.  The  ecclesiastics  as  chancellors. 

4.  The  conflict  between  courts  of 

law  and  equity. 

5.  A  conscience  court. 

6.  What    the     jurisdiction     em- 

braces. 


7.  Equitable  jurisdiction  —  How 

divided. 

8.  Exclusive  jurisdiction. 

9.  Concurrent  jurisdiction. 

0.  Auxiliary  jurisdiction. 

1.  Equity  having  obtained  juris- 

diction   will    retain    it    and 
award  complete  relief. 
The  maxims  in  equity  applica- 
ble to  jurisdiction. 


12, 


§  1.  Legal  and  equitable  remedies. —  "There  is  no  wrong 
without  a  remedy  "  is  a  maxim  of  the  law  generally  accepted, 
and  subject  to  but  few  exceptions.  The  remedy,  however,  de- 
pends entirely  upon  the  nature  of  the  wrong  or  injury  to  be 
redressed;  it  is  not  every  wrong  that  finds  its  full,  complete 
and  adequate  remedy  in  a  court  of  law;  the  remedies  in  the 
law  courts,  called  legal  remedies,  furnish  redress  by  judgment 
for  the  plaintiff,  giving  him  possession  of  his  property,  or 
damages  in  money  for  the  injury  committed,  with  the  writ 
of  execution  to  enforce  the  judgment.  Necessarily  the  rem- 
edy IS  narrow  and  confined  to  redress  for  such  wrongs  and 
injuries  as  a  money  judgment  will  completely  and  adequately 
satisfy.  It  is  the  wrongs  and  injuries  that  cannot  be  com- 
pletely and  satisfactorily  redressed  by  a  legal  remedy  of  which 
the  court  of  equity  takes  jurisdiction;  its  jurisdiction  is  broader; 
its  remedies  more  complete,  giving  redress  for  the  infringe- 
ment of  rights  where  the  law,  because  of  its  narrow  and  con- 
fined procedure,  furnishes  an  inadequate  remedy. 

§  2.  History  of  equitable  jurisdiction.— The  equity  court 
has  been  called  ttie  "conscience  court,"  and  in  its  be-  nning 
1 


2  JURISDICTION    OF   THE    EQUITY    OOUBT.  [§  2. 

the  jurisdiction  was  no  doubt  solely  exercised  by  the  king  in 
person;  "humbly  petitioning,"  the  subject  who  suffered  wrong 
or  injury  sought  the  king;  stated  to  him  personally  his  griev- 
ance and  prayed  for  relief;  and  it  was  from  the  exercise  of  this 
duty  toward  the  subjects  of  his  realm  that  the  maxim  "the 
king  is  the  fountain  of  justice  "  came  into  existence;  and  that 
other  maxim  accepted  as  true  and  incontrovertible,  '■^rex  non 
jpotest  peccare  "  (the  king  can  do  no  wrong),  had  its  origin. 
Sitting  in  his  royal  court,  "at^(?a  regis'''  (the  royal  hall),  or 
'^  curia  regis''  (the  king's  court),  the  king  in  person  adjudged 
and  settled  the  controversies  of  his  people;  but  with  the  in- 
crease of  population  and  duties  it  became  impossible  for  the 
king  to  perform  this  duty,  and  of  a  necessity  tribunals  were 
constituted  over  which  judges  were  finally  deputed  to  preside, 
try,  and  determine  the  differences  of  litigants  sent  to  them 
from  the  court  of  the  king.  In  the  course  of  time  proceedings 
for  the  redress  of  wrongs  were  instituted  upon  the  plaint  of 
the  subject  by  using  a  writ  under  the  king's  great  seal,  or,  as 
it  was  later  called,  "the  great  seal,"  called  an  original  writ, 
directed  to  the  sheriff  of  the  county  where  the  injuiy  was 
alleged  to  have  been  committed,  containing  a  summary  state- 
ment of  the  complaint,  and  requiring  the  respondent  to  appear 
and  answer  the  allegations  of  the  complainant,  directing  that 
the  court  should  hear  the  proofs  and  administer  the  appro- 
priate relief. 

In  every  cause  there  issued  a  remedial  writ,  from  the  "king's 
chancery,"  according  to  the  plaint.  To  attend  to  the  several 
duties  incident  to  these  proceedings  it  became  necessary  to 
delegate  to  some  one  authority  to  assist  and  act  for  the  king, 
and  very  soon  upon  this  person  devolved  the  duty  of  stating 
the  facts,  framing  the  complaints,  issuing  the  writs  in  the 
king's  name  under  the  great  seal,  and  sending  the  cause  to  the 
proper  judge  for  hearing.  Certain  forms  of  writs  were  adopted 
to  be  issued  applicable  to  certain  facts  and  circumstances,  and 
the  place  was  made  known  where  all  suitors  might  be  fur- 
nished with  these  writs.  This  place  was  called  the  ^'-officina 
justitim''  the  office  or  place  of  justice,  or  sometimes  called 
the  "court  of  chancery."  Out  of  this  court,  or  office,  the  writs 
issued,  and  to  it  they  were  all  returned.  The  officer  desig- 
nated to  assist  became  to  be  the  presiding  officer  over  this  tri- 


§  3.]  JURISDICTION    OF   THE    EQUITY    COURT.  3 

bunal  and  was  called  the  "chancellor,"  and  finally  the  "lord 
chancellor,"  and  the  chancery  court  over  which  he  presided 
the  highest  court  next  to  parliament;  the  chancellor  also  came 
to  be  known  as  the  "keeper  of  the  great  seal;"  also  as  the 
keeper  of  the  "  king's  conscience."  "  The  office  and  name  of 
chancellor,"  says  Elackstone^  "(however  derived),  was  cer- 
tainly known  to  the  courts  of  the  Koraan  emperors,  where  it 
originally  seems  to  have  signified  a  chief  scribe  or  secretary, 
who  was  afterwards  invested  with  several  judicial  powers,  and 
a  general  superintendency  over  the  rest  of  the  officers  of  the 
prince.  P>om  the  Eoman  empire  it  passed  to  the  Koman 
church,  ever  emulous  of  imperial  state;  and  hence  every  bishop 
has  to  this  day  his  chancellor,  the  principal  judge  of  his  con- 
sistory. And  when  the  modern  kingdoms  of  Europe  were  es- 
tablished upon  the  ruins  of  the  empire,  almost  every  state 
preserved  its  chancellor,  with  difi'erent  jurisdictions  and  dig- 
nities, according  to  their  difi'erent  constitutions.  But  in  all  of 
them  he  seems  to  have  had  the  supervision  of  all  charters,  let- 
ters, and  such  other  public  instruments  of  the  crown  as  were 
authenticated  in  the  most  solemn  manner;  and  therefore  when 
seals  came  in  use  he  had  always  the  custody  of  the  king's  great 
seal.  So  that  the  office  of  chancellor,  or  lord  keeper,  is  with 
us  at  this  day,  created  by  the  mere  delivery  of  the  king's  great 
seal  into  his  custody;  whereby  he  becomes,  without  writ  or 
patent,  an  officer  of  the  greatest  weight  and  power  of  any  now 
subsisting  in  the  kingdom,  and  superior  in  point  of  precedency 
to  every  temporal  lord." 

§  3.  The  ecclesiastics  as  chancellors.—  Until  about  1592 
the  office  of  chancellor  was  indiscriminately  committed  to  the 
clergy  and  lawyers,  but  by  the  churchmen  claimed  to  be  an 
ecclesiastical  office  and  the  court  an  ecclesiastical  court;  that 
the  clergy  should  be,  because  of  their  spiritual  office,  the 
keeper  of  the  king's  conscience,  and  that  they  were  peculiarly 
fitted  for  the  duties  devolving  upon  the  chancellor.  In  this 
year,  1592,  Sergeant  Puckering  was  made  keeper  of  the  great 
seal,  and  from  that  time,  with  the  exception  of  a  short  inter- 
val when  the  office  was  held  by  the  dean  of  Westminster,  the 
court  has  been  presided  over  by  a  lawyer.'' 

»  3  Black.  Coumi.  40.  «3  Black.  Comm.  5a 


4  JURISDICTION    OF   THE    EQUITY    COURT.  [§§  4,  5. 

§  4.  The  conflict  between  courts  of  law  and  erinity.— Tlie 
common-law  court  is  of  greater  antiquity  than  the  court  of 
equity,  and  between  these  two  courts  a  conflict  arose  as  to  the 
extent  of  their  juHsdiction.  There  were,  no  doubt,  abuses  of 
the  powers  of  both  courts,  which  as  early  as  1389  occasioned 
petitions  from  the  commons  that  no  man  should  be  brought 
before  the  chancellor  or  the  king's  court  for  matters  remedial 
at  the  common  law;  but  no  satisfactory  answers  were  received 
by  the  several  and  almost  constant  petitioners  until  the  time 
of  Lord  Elsraerein  1616,  when  a  very  notable  contention  arose 
between  the  courts  of  law  and  equity  brought  about  by  Sir 
Edward  Coke,  then  chief  justice  of  the  court  of  king's  bench, 
as  to  the  power  of  a  court  of  equity,  whether  it  could  grant 
relief  after  judgment  or  against  a  judgment  of  the  common- 
law  court.  This  was  really  the  culmination  of  years  of  con- 
test over  the  conflicting  jurisdictions;  and  although  it  was  not 
fully  settled  at  this  time,  there  was  earnest  and  determined 
action  upon  the  troublesome  question.  Sir  Edward  Coke  was, 
no  doubt  because  of  the  stand  he  took  in  the  discussion,  re- 
moved from  his  position.  Finally,  during  the  incumbency  of 
Lord  Bacon,  the  practice  of  the  court  was  reduced  to  a  more 
regular  system,  and  while  the  settlement  of  the  questions 
which  were  the  subject  of  the  great  contention  between  the 
courts  cannot  be  traced  to  any  one  of  the  chancellors,  it  may 
be  said  that  from  this  time  on  that  which  was  finally  accepted 
and  adopted,  to  wit,  that  the  equity  court  could  not  assume 
jurisdiction  in  cases  remedial  in  the  courts  of  common  law, 
grew  in  favor. 

Mr.  Justice  Gibson,  in  Pennoch  v.  Hart^  said:  "A  too 
severe  application  of  the  common-law  rules  forced  the  court 
of  chancery  into  existence  in  England.  The  body  of  the  chan- 
cery law  is  nothing  else  than  a  system  of  exceptions;  of  princi- 
ples applicable  to  cases  falling  within  the  letter,  but  not  within 
the  intention,  of  particular  rules;  or  if  falling  within  the  letter, 
yet  not  within  the  intention.  The  exercise  of  equity  powers 
in  every  government  of  laws  is  conclusive  proof  of  a  necessity 
that  they  be  lodged  somewhere." 

§  5.  A  conscience  court.— The  court  of  equity  has  gener- 
ally been  called,  and  to  some  extent  no  doubt  is,  a  conscience 

1  8  Serg.  &  Rawle  (Pa.),  368. 


§  5.]  JUKISDICTION    OF   THE    EQUITY    COURT.  5 

court;  the  prayers  appended  to  petitions,  and  bills  filed  by  its 
suitors,  indicate  this;  they  pray  for  such  relief  as  "in  equity 
and  good  conscience  may  seem  meet."  It  has  been  said  that, 
"in  a  moral  sense,  that  is  called  equity  which  is  found  ^ex 
wquo  et  hono^  in  natural  justice,  in  honesty,  and  in  right." 
"Equity,  then,  in  its  true  and  genuine  meaning,"  says  Black- 
stone,  "is  the  soul  and  spirit  of  all  law:  positive  law  is  con- 
strued, and  rational  law  is  made,  by  it.  In  this,  equity  is  syn- 
onymous to  justice;  in  that,  to  the  true  sense  and  sound  inter- 
pretation of  the  rule. "  ^  But  it  must  not  be  concluded  from  this 
that  the  court  of  equity  arrives  at  its  judgments  and  decrees 
simply  by  the  dictation  of  the  consciences  of  its  chancellors; 
ior  if  that  were  true  there  would  be  no  certainty  as  to  what 
the  final  decree  in  a  chancery  case  would  be,  for  the  consciences 
of  men  are  not  the  same,  and  if  this  were  the  rule  there 
would  be  as  many  different  opinions,  judgments  and  decrees 
as  there  are  different  consciences  of  chancellors  who  preside 
over  the  courts.  The  equity  court  is  a  conscience  court,  to  the 
extent,  at  least,  that  its  chief  and  foremost  object  is  to  do  equal 
and  exact  justice  in  every  case  heard  in  its  courts;  but  that 
equal  and  exact  justice  can  only  be  said  to  be  attained  when 
the  rules  and  demands  of  the  law  governing  the  rights  and 
liabilities  of  the  parties  in  the  given  case  have  been  followed 
and  satisfied;  and  so  it  is  written  into  the  jurisprudence  of 
equity  and  has  become  to  be  a  maxim,  that  "equity  follows 
the  law." 

Lord  Campbell  says:  "  In  former  times  unconscientious  chan- 
cellors, talking  perpetually  of  their  conscience,  have  decided 
in  a  very  arbitrary  manner,  and  have  exposed  their  jurisdiction 
to  much  odium  and  many  sarcasms.  But  the  preference  of 
individual  opinion  to  rules  and  precedents  has  long  ceased.  The 
doctrine  of  the  court  is  to  be  diligently  found  out  and  strictly 
followed,  and  the  chancellor  sitting  in  equity  is  only  to  be 
considered  a  magistrate,  to  whose  tribunal  are  assigned  certain 
portions  of  forensic  business  to  which  he  is  to  apply  a  well- 
defined  system  of  jurisprudence,  being  under  the  control  of 
fixed  maxims  and  prior  authorities,  as  much  as  the  judges  of 
the  courts  of  common  law."* 

1  3  Black.  Comtn.  429. 

2Campb.  Lives  of  the  Lord  Chancellors,  vol.  2,  p.  IS,  note  4. 


6  JUEISDIOTION    OF   THE    EQUITY    OOUET.  [§  6. 

§  6.  What  the  jurisdiction  embraces.— It  would  perhaps 
be  less  diflBcult  to  determine  what  the  jurisdiction  of  equity 
does  not  embrace.     It  may  be  said  to  be  a  general  rule  that 
equity  will  not  assume  jurisdiction  of  causes  of  action  for  which 
there  always  has  been  a  plain,  adequate  and  complete  remedy 
at  law;  for  if  there  is  a  plain,  adequate  and  complete  remedy 
at  law  the  parties  have  the  right  to  have  the  controversy  set- 
tled in  the  legal  tribunal  by  the  forms  and  settled  procedures 
of  the  law  courts,  which  among  other  things  will  allow  them 
a  trial  by  jury.     Mr.  Justice  Blackstone,^  as  to  the  powers  of 
the  court  of  equity,  says :  "  They  are  established  to  detect  latent 
frauds  and  concealments,  which  the  process  of  the  courts  of 
law  is  not  adapted  to  reach ;  to  enforce  the  execution  of  such 
matters  of  trust  and  confidence  as  are  binding  in  conscience, 
though  not  cognizable  in  a  court  of  law;  to  deliver  from  such 
dangers  as  are  owing  to  misfortune  or  oversight;  and  to  give 
a  more  specific  relief,  and  more  adapted  to  the  circumstances 
of  the  case,  than  can  always  be  obtained  by  the  generality  of 
the  rules  of  the  positive  or  common  law.    This  is  the  business  of 
our  courts  of  equity,  which,  however,  are  only  conversant  in  mat- 
ters of  property.     For  the  freedom  of  our  constitution  will  not 
permit  that  in  criminal  cases  a  power  should  be  lodged  in  any 
judge  to  construe  the  law  otherwise  than  according  to  the 
letter.     This  caution,  while  it  admirably  protects  the  public 
liberty,  can  never  bear  hard   upon   individuals."     "But  the 
general  account,"  says  Judge  Story ,2  "  of  Lord  Redesdale  (which 
he  admits,  however,  to  be  imperfect,  and  in  some  respects  in- 
accurate), is  far  more  satisfactory,  as  a  definite  enumeration. 
'  The  jurisdiction  of  a  court  of  equity  '  (says  he),  '  when  it  as- 
sumes a  power  of  decision,  is  to  be  exercised  (1)  where  tha^ 
principles  of  law,  by  which  the  ordinary  courts  are  guided,, 
give  a  right,  but  the  powers  of  those  courts  are  not  sufficient 
to  afford  a  complete  remedy,  or  their  modes  of  proceeding  are 
inadequate  to  the  purpose;  (2)  where  the  courts  of  ordinary 
jurisdiction  are  made  instruments  of  injustice;  (3)  where  the 
principles  of  law,  by  which  the  ordmary  courts  are  guided,  give 
no  right,  but,  upon  the  principles  of  universal  justice,  the  inter- 
ference of  the  judicial  power  is  necessary  to  prevent  a  wrong,, 

1 1  Black.  Comm.  92.  2 1  Story,  Eq.  Jun,  sec.  32. 


R  6.]  JURISDICTION    OF   THE    EQUITY    COURT.  T 

and  the  positive  law  is  silent.'  And  it  may  also  be  collected 
that  courts  of  equity,  without  deciding  upon  the  rights  of  the 
parties,  administer  to  the  ends  of  justice  by  assuming  a  juris- 
diction; (4)  to  remove  impediments  to  the  fair  decision  of  a 
question  in  other  courts;  (5)  to  provide  for  the  safety  of  prop- 
erty in  dispute,  pending  a  litigation,  and  to  preserve  property 
in  danger  of  being  dissipated  or  destroyed  by  those  to  whose 
care  it  is  by  law  intrusted,  or  by  persons  having  immediate  but 
partial  interests;  (6)  to  restrain  the  assertion  of  doubtful  rights 
in  a  manner  productive  of  irreparable  damage;  (7)  to  prevent 
injury  to  a  third  person  by  the  doubtful  title  of  others;  and 
(8)  to  put  a  bound  fo  vexatious  and  oppressive  litigation,  and 
to  prevent  multiplicity  of  suits.  And  further,  that  courts  of 
equity,  without  pronouncing  any  judgment  which  may  affect 
the  rights  of  parties,  extend  their  jurisdiction ;  (9)  to  compel  a 
discovery,  or  obtain  evidence,  which  may  assist  the  decision  of 
other  courts;  and  (10)  to  preserve  testimony,  when  in  danger 
of  being  lost,  before  the  matter  to  which  it  relates  can  be 
made  the  subject  of  judicial  investigation.' 

"  Perhaps  the  most  general,  if  not  the  most  precise,  description 
of  a  court  of  equity,  in  the  English  and  American  sense,  is 
that  it  has  jurisdiction  in  cases  of  rights  recognized  and  pro- 
tected by  the  municipal  jurisprudence,  where  a  plain,  adequate 
and  complete  remedy  cannot  be  had  in  the  courts  of  common 
law.  The  remedy  must  be  plain;  for,  if  it  be  doubtful  and 
obscure  at  law,  equity  will  assert  a  jurisdiction.  It  must  be 
adequate;  for,  if  at  law  it  falls  short  of  what  the  party  is  en- 
titled to,  that  founds  a  jurisdiction  in  equity.  And  it  must  be 
complete;  that  is,  it  must  attain  the  full  end  and  justice  of  the 
case.  It  must  reach  the  whole  mischief,  and  secure  the  whole 
rio-ht  of  the  party  in  a  perfect  manner,  at  the  present  time  and 
in°future;  otherwise,  equity  will  interfere  and  give  such  relief 
and  aid  as  the  exigency  of  the  particular  case  may  require. 
The  jurisdiction  of  a  court  of  equity  is,  therefore,  sometimes 
concurrent  with  the  jurisdiction  of  a  court  of  law;  it  is  some- 
times exclusive  of  it,  and  it  is  sometimes  auxiliary  to  it." 

The  jurisdiction  of  the  equity  court  has  been  systematized 
and  is  now  governed  by  fixed  and  settled  legal  principles  which 
govern  the  extent  and  the  procedure  of  its  remedial  powers; 
as,  for  example,  equity,  as  a  general  rule,  will  assume  jurisdic- 


8  JURISDICTION    OF    THE    EQUITY    COURT.  [(j§  7,  8. 

tion  and  afford  a  remedy  in  cases  of  fraud,  accident  and  mis- 
take. While  to  this  general  rule  there  are  certain  exceptions 
and  limitations,  it  will  suffice  to  illustrate  the  general  doctrine; 
it  will  also  assume  jurisdiction  to  prevent  a  multiplicity  of  law 
suits  when  it  can  settle  the  whole  controversy  in  one  suit;  and 
there  are  other  settled  and  fixed  rules  which  determine  the 
equity  jurisdiction,  and  so  it  may  be  said  that  a  cause  will  not 
fall  within  the  equitable  jurisdiction  merely  because  there  is 
no  plain,  adequate  and  complete  remedy  at  law.  It  must  also 
appear  that  it  is  a  case  that  is  included  within  some  of  the 
general  principles  or  acknowledged  heads  of  equitable  juris- 
diction. 

§  7.  Equitable  jurisdiction  — How  divided.— Equitable  ju- 
risdiction may  be  said  to  be  divided  into  three  distinct  classes 
or  heads: 

First.  Exclusive  jurisdiction. 

Second.  Concurrent  jurisdiction. 

Thir'd.  Auxiliary  jurisdiction. 

Within  some  one  of  these  classes  every  case  in  equity  must 
fall. 

§8.  Exclusive  jurisdiction — The  first  division,  as  indi- 
cated by  its  name,  relates  to  that  class  of  equity  causes  which  are 
cognizable  only  in  a  court  of  equity  where  both  the  remedy 
and  the  procedure  is  confined  to  the  equity  court  exclusively. 
Mr.  Pomeroy  has  most  admirably  classified  and  defined  the 
cases  that  belong  to  this  jurisdiction  as  follows:  ^  First, 
"  all  civil  cases  in  which  the  primary  right  violated  or  to  be 
declared,  maintained  or  enforced  —  whether  such  right  be  an 
estate,  title  or  interest  in  property,  or  a  lien  on  property,  or  a 
thing  in  action  arising  out  of  contract  —  is  purely  equitable 
and  not  legal,  a  right,  estate,  title  or  interest  created  by 
equity  and  not  by  law.  All  cases  of  this  kind  fall  under  the 
equitable  jurisdiction  alone,  because  of  the  nature  of  the  pri- 
mary or  substantive  right  to  be  redressed,  maintained  or  en- 
forced, and  not  because  of  the  nature  of  the  remedies  to  be 
granted;  although  in  most  of  such  instances  the  remedy  is 
also  equitable.  It  is  a  proposition  of  universal  application 
that  courts  of  law  never  take  cognizance  of  cases  in  which  the 

1 1  Pom.  Eq.  Jur.,  sees.  137,  13a 


§  8.]  JURISDICTION    OF    THE    EQUITY    COUKT.  9 

primary  right,  estate  or  interest  to  be  maintuined,  or  the  vio- 
lation of  which  is  sought  to  be  redressed,  is  [)urely  equitable, 
unless  such  power  has  been  expressly  conferred  by  statute; 
and  if  the  statutes  have  interfered  and  made  the  right,  or  the 
violation  of  it,  cognizable  by  courts  of  law,  such  rigiit  thereby 
becomes  to  that  extent  legal.  .  .  .  Secondly,  all  civil  casu-s 
in  which  the  remedy  to  be  granted  —  and,  of  course,  the 
remedial  right  —  is  purely  equitable,  or  one  which  is  recog- 
nized and  administered  by  courts  of  equity,  and  not  by  courts 
of  law.  In  the  cases  of  this  class,  the  primary  right  u  liich  is 
maintained,  redressed  or  enforced  is  sometimes  equitable, 
and  is  sometimes  legal;  but  the  jurisdiction  depends,  not 
upon  the  nature  of  these  rights,  estates  or  interests,  but 
wholly  upon  the  nature  of  the  remedies.  Cases  in  which  the 
remedy  sought  and  obtained  is  one  which  equity  courts  alone 
are  able  to  confer  must,  upon  any  consistent  system  of  classi- 
fication, belong  to  the  exclusive  jurisdiction  of  equity,  even 
though  the  primary  right,  estate  or  interest  of  the  party  is 
one  which  courts  of  law  recognize,  and  for  the  violation  of 
which  they  give  some  remedy."  These  classes  of  cases  may 
perhaps  be  better  understood  by  an  example:  A.  desiring  to 
purchase  certain  real  estate  employs  an  agent,  B.,  to  purchase 
it  for  him.  To  this  agent  he  furnishes  money  which  the  agent 
uses  for  the  purpose,  but  instead  of  having  the  land  deeded  to 
his  principal,  A.,  he  procures  it  to  be  deeded  to  himself,  and 
places  his  deed  on  record.  Now  the  lands  were  paid  for  with 
the  money  of  the  principal.  A.,  but  the  deed  conveys  the  legal 
title  to  the  agent,  B.  Equity  and  good  conscience  dictate  that 
these  lands,  notwithstanding  the  fact  that  the  deed  was  executed 
to  the  agent,  B.,  and  was  duly  recorded,  belong  to  the  plaintiff, 
A.  Here  is  a  right,  an  estate,  a  title,  created  by  equity  and 
not  by  law.  The  legal  title  to  the  land  is  the  title  created  by 
the  deed  of  conveyance  executed,  delivered  and  recorded  to  B., 
but  A.,  because  of  the  fraud  of  B.,  has  the  equitable  title  to  the 
land,  and  if  A.  would  obtain  redress  by  recovering  the  lands 
and  setting  aside  the  deed  of  B.  for  the  fraud  perpetrated,  he 
can  only  find  his  remedy  in  a  court  of  equity.  The  court  of 
equity  has  exclusive  jurisdiction  in  such  a  case,  because,  as  has 
been  said,  the  estate,  right,  title  and  interest  which  A.  seeks  to 
enforce  is  created  by  equity  —  is  purely  equitable  and  not  legal. 


10  JURISDICTION    OF    THE    BQUITY    COURT.  [§  9. 

To  illustrate  the  second  class  of  cases  falling  within  the  ex- 
clusive jurisdiction,  taking  the  same  example:  Suppose  that  B, 
purchased  the  lands  for  A.,  receiving  therefor  a  land  contract 
executed  by  C,  providing  that  upon  receiving  certain  pay- 
ments he,  C,  will  execute  his  deed  of  the  lands  and  deliver  it 
to  A.  A.  offers  to  make  the  payments  provided  for  in  the  con- 
tract, but  C.  refuses  to  accept,  and  refuses  to  make  his  deed  as 
stipulated  in  the  contract.  Now,  A.  may  sue  him  for  damages 
in  a  court  of  law.  The  contract  furnishes  a  legal  remedy,  but 
A.  does  not  want  damages  —  he  wants  the  land  itself;  therefore 
the  only  remedy  by  which  he  can  procure  the  land  is  a  remedy 
in  equity;  he  must  file  a  bill  for  the  specific  performance  of 
the  contract.  Here  it  will  be  seen  that  the  "  primary  right 
which  is  to  be  maintained  and  enforced,  or  redressed,  may  be 
sometimes  equitable  and  sometimes  legal,  but  the  remedy  to 
be  granted,  that  is,  the  remedial  right,  is  purely  equitable.'' 
To  obtain  the  land  itself  the  law  court  furnishes  no  remedy; 
the  exclusive  and  only  remedy  is  an  equitable  remedy,  and 
while  there  is  a  legal  right  which  may  be  enforced,  it  is  not  a 
legal  right  that  will  obtain  the  relief  desired.  The  primary 
right  may  be  legal  as  well  as  equitable,  but  the  remedy  is 
purely  equitable. 

§  9.  Concurrent  jurisdiction. —  The  cases  embraced  in  this 
jurisdiction  are  those  where  the  primary  right  or  interest  is  not 
equitable  but  legal;  cases  for  which  the  law  courts  will  furnish 
a  remedy,  but  not  an  adequate  and  complete  remedy.  The 
foundation  of  this  jurisdiction  is  that,  while  there  is  a  remedy 
at  law,  there  is  no  adequate  remedy;  as,  for  example,  in  cases 
brought  for  the  specific  performance  of  a  contract,  usually 
there  is  a  remedy  at  law,  but  the  legal  remedy  is  not  adequate. 
As  where  one  has  purchased  lands  upon  a  contract  stipulating 
that  upon  the  performance  of  certain  conditions  and  the  pay- 
ment of  a  certain  amount  of  money  agreed  upon  in  the  con- 
tract, the  vendor  will  execute  to  him  a  good  and  sufficient 
conveyance  of  the  property.  JSTow,  the  vendee  upon  the  re- 
fusal of  the  vendor  to  so  execute  the  conveyance,  upon  the  ful- 
fillment of  the  contract  upon  his  part  according  to  the  terms 
thereof,  or  his  offer  so  to  do,  and  tendering  the  amount  due 
and  payable,  may  support  a  legal  action  for  damages  and  re- 
cover the  money  paid  upon  the  contract;  but  the  vendee  de- 


§  9.]  JURISDICTION   OF    THE    EQUITY    COURT.  11 

sires  a  coaveyance  of  the  land ;  the  court  of  law  Avill  give  him  no 
such  remedy,  and  he  can  only  enforce  the  execution  of  the  con- 
tract in  a  court  of  equity.  So  it  has  been  held  where  insurance 
policies  have  been  rendered  void  because  of  fraud  on  the  part 
of  the  insured,  the  company  may  successfully  defend  in  a  court 
of  law  upon  an  action  brought  by  the  insured  to  recover  the 
amount  of  the  policy;  but  the  insurance  company  desires  to 
have  the  policy  annulled;  it  can  only  obtain  this  right  in  a 
court  of  equity. 

In  the  case  of  Casperson  v.  Casperson^  the  supreme  court  of 
New  Jersey  say :  "The  jurisdiction  of  the  courts  of  law  and 
equity,  in  matters  of  account,  ...  is  undoubtedly  con- 
current, and  whichever  court  first  obtains  jurisdiction  should 
dispose  of  the  whole  matter  in  the  litigation."  And  where  the 
object  of  the  bill  is  not  only  to  obtain  a  decree  for  the  payment 
of  an  amount  of  money  due  to  complainant,  but  to  reach  a  par- 
ticular fund,  and  to  obtain  an  order  for  the  payment  from  that 
fund  upon  the  grounds  that  the  fund  has  been  equitably  assigned 
to  the  complainant,  it  was  held  that,  the  remedy  at  law  not 
being  adequate,  equity  would  take  jurisdiction.^  The  equity 
court  will  take  jurisdiction  where  to  do  so  a  multiplicity  of 
suits  at  law  would  be  avoided;  but  the  disputed  right  must  in- 
volve more  than  two  persons,  for  in  such  case  the  law  action 
can  settle  the  controversy;  it  applies  when  there  are  different 
persons  with  different  and  adverse  interests,  to  settle  which 
would  necessitate  numerous  legal  cases  which  the  equity  court 
could  join  in  one  bill  and  fully  and  completely  settle  in  one 
case.'  By  concurrent  jurisdiction  is  not  meant  that  the  com- 
plainant can  choose  either  tribunal,  as  he  may  desire;  if  the 
remedy  at  law  is  full,  adequate  and  complete,  and,  as  some  of 
the  courts  have  said,  as  convenient  and  not  difficult  or  doubt- 
ful, he  must  choose  that  forum,  and  the  court  of  equity  will 

165  N.    J.    L.    402,    47    Atl.    428;        3  Cleland  v.  Campbell  et  al.,  78  III. 

Sweeney  v.  Williams,  36   N.  J.  Eq.  App.  624;  County  Com'rs  v.  City  of 

627;  Ellis  v.  Land,  etc.  Co.,  102  Wis.  Frederick.  88  Md.   654,  42  Atl.  218; 

409,  78  N.  W.  583.  Steigerwait  v.  Rife,  9  Pa.  Sup.  Ct.363; 

2  Smith  V.  Bates  Machine  Co.,  182  Stock  well   v.  Fitzgerald,  70  Vt.  468, 

111,  166,  55  N.  E.  69;  Chapel  v.  Hull,  41   Atl.  504;  Watson  v.  Watson,  45 

60  Mich.  167,  26  N.  W.  874;  Polhemus  W.  Va.  290. 
V.  Holland  Trust  Co.,  59  N.  J.  Eq.  93, 
45  AtL  534. 


12 


JUKISDIOTION    OF   THE    EQUITY    COURT. 


[§  10. 


not  assume  jurisdiction  of  such  a  cause;  equity  will  only  take 
jurisdiction  wiien  the  legal  remedy  that  is  open  to  the  party  is 
not  adequate  or  complete;  where  the  relief  sought  and  the  re- 
lief that  would  be  adequate  cannot  be  obtained  in  the  law- 
court,  but  can  be  in  the  equity  court.' 

§10.  Auxiliary  jurisdiction.— This  jurisdiction  is  from 
time  to  time  invoked.  In  suits  brought  under  it  no  relief  is 
asked;  the  sol.-  object  of  the  proceeding  is  to  obtain  evidence 
to  be  used  upon  the  trial  of  some  action  at  law;  they  are  gen- 


1  Wheeler  v.  Clinton  Canal  Bank, 
Har.  Ch.  (Midi.)  449;  McKianey  v. 
Curtiss,60  Mich.  611:  Edsell  v.  Briggs, 

20  Mich.  4-^9;  Gotb  v.  Hoschna,  57 
Mich.  413;  Kilbourn  v.  Sunderland, 
inO  U.  S.  505;  Watson  v,  Sutherland, 
5  Wall.  (U.  S.)  74;  Boyce  v.  Grundy, 
3  Pet.  (U.  S.)  210:   Barber  v.  Barber, 

21  How.  (U.  S.)  591. 

The  supreme  court  of  Michigan  in 
Wallace  v.  Harris,  32  Mich.  390,  in  a 
case  where  this  question  was  in- 
volved, say:  "The  circumstance  that 
some  of  these  questions,  if  standing 
by  themselves,  might  be  regularly 
contested  and  settled  in  ejectment, 
is  not  enough.  The  whole  case,  with 
all  its  concomitants,  together  with 
the  nature  and  incidents  of  par- 
tition, in  view  of  the  character  of 
the  holdings  and  the  remedial  bene- 
fits to  which  parties  are  entitled, 
must  have  attention;  and  we  are  to 
inquire  whetlier  a  remedy  at  law 
would  be  appropriate  and  effectual 
on  the  one  hand,  and  whether  any 
obstructions  exist  to  a  valid  defense 
at  law  on  the  other.  If  the  remedy 
in  equity  is  seen  to  be  fuller  or  more 
appropriate,  if  better  adapted  in 
view  of  the  ingredients  of  the  con- 
troversy to  effectuate  justice  as  be- 
tween the  litigants,  and  put  an  end 
to  disputes  about  the  subject  of 
contention,  the  power  over  the  case 
ought  not  to  be  questioned  upon 
partial  views  or  theories.  It  may 
be  safely  assumed    that  a  court  of 


equity  is  as  competent  to  deal 
rightly  with  causes  as  a  court  of 
common  law,  and  that  the  interests 
of  parties  will  be  as  carefully  guarded 
by  a  judge  sitting  m  chancery  as 
they  would  be  if  the  same  judge 
were  sitting  on  the  law  side. 

"  Where  the  question  is  strictly  ju- 
risdictional, and  where  the  proof  is 
specifically  suited  to  the  arbitra- 
ment of  a  jury,  and  also  in  those 
cases  which  are  susceptible  of  being 
fully  and  justly  disposed  of  in  a 
court  of  law,  and  which  inveterate 
usage  has  assigned  to  that  juris- 
diction, we  may  find  reason  enough 
in  principle  and  convenience  for  ad- 
hering to  the  established  course. 
.  .  .  The  great  purpose  is  to  ter- 
minate the  whole  controversy  and 
reach  justice  through  means  the 
most  appropriate.  And  '  when  the 
principles  of  law  by  which  the  or- 
dinary courts  are  guided  give  rights, 
but  the  powers  of  those  courts  are 
not  sufficient  to  afford  a  complete 
remedy,  or  their  modes  of  proceed- 
ing are  inadequate,'  it  is  in  general 
admitted  that  a  court  of  equity  may 
act."  American  Ins.  Co.  v.  Fisk,  1 
Paige,  90;  Whitlock  v.  Duffield,  2 
Edw.  Ch.  366;  Mallory  v.  Vander- 
heyden,  3  Barb.  Ch.  9;  Truman  v. 
Lore,  14  Ohio  St.  144;  Hartshorn  v. 
Day,  19  How.  (U.  S.)  •:-23;  Quick  v, 
Stuyvesant,  2  Paige,  84;  Pratt  v. 
Northam,  5  Mason  (U.  S.),  95. 


^§  11,  12.]  JURISDICTION    OF    THE    EQUITY    COURT.  13^ 

erally  suits  for  discovery,  but  are  not  the  sole  or  only  proceed- 
ino-  in  chancery  causes  to  obtain  discovery,  for  in  any  bill  in 
equity,  whether  brought  within  the  exclusive  or  concurrent 
jurisdiction,  a  complainant  may  pray  for  and  obtain  discovery 
for  the  purposes  of  the  particular  case.  Suits  brought  as 
auxiliary  actions  are  simply  to  aid  some  other  proceeding.  A 
sworn  bill,  or  petition,  is  filed  to  obtain  an  answer  thereto 
under  oath,  which  discovers  the  facts,  and  this  answer  may  be 
used  as  evidence  in  the  anticipated  action.  The  proceeding 
is  practically  obsolete,  for  tlie  statutes  permitting  parties  to 
be  called  as  witnesses  have  rendered  it  unnecessary. 

§  11.  Equity  having  obtained  jurisdiction  will  retain  it 
and  award   complete  relief.—  It  is  the  object  and  aim  of 
equity  to  do  full  and  complete  justice  between  the  parties  who 
have  invoked  and  entered  its  jurisdiction,  and  so  if  the  court 
has  obtained  jurisdiction  of  the  parties  and  the  cause,  it  will 
complete  the  entire  controversy,  even  to  the  awarding  of  dam- 
ages and  decreeing  the  payment  of  money.  Where  an  equitable 
action  was  brought  to  reform  a  lease,  the  court  gave  its  decree 
for  the  collection  of  rent  under  the  lease.^     And  where  a  suit 
was  comwienced  in  equity  for  an  accounting  and  for  the  right 
to  redeem,  with  a  general  prayer  for  relief,  the  court  found  a 
decree  for  a  personal  judgment  upon  the  ground  that  having 
obtained  jurisdiction  the  court  may  completely  settle  the  con- 
troversy .^  This  rule  is  often  invoked  in  cases  for  settling  the  af- 
fairs of  partnerships.    In  such  cases  equity  has  jurisdiction ;  but 
it  is  held  that  when  it  is  competent  for  the  court  to  grant  the 
relief  sought,  having  obtained  jurisdiction  for  that  purpose,  it 
will  retain  it  and  administer  complete  relief  between  the  par- 
ties, even  to  the  extent  of  settling  controversies  growing  out 
of  the  equitable  cause  for  which  a  court  of  law  would  atford 
adequate  relief.' 

§  12.  The  maxims  in  equity  applicable  to  jurisdiction.— 
The  complainant  who  enters  the  equity  court  prays  for  the 

iKeliy  V.  Galbraith,  186  111*.  593,  58  S.  354;  Kilbourn  v.  Sunderland,  130 

2^_  E  451.  U.  S.  514;  Un.  Cent.  Life  Ins.  Co.  v. 

"2  Olson    V.  Lamb,  61  Neb.  484,  85  Phillips,   103  Fed.   19;  Safe  Deposit 

N.    VV.    397;    Ducktown,  etc.  Co.  v.  Trust  Co.  v.  Baker,   90  Md.  744,  46 

Barnes  (Tenn.,  1900), 60S.  W.  593.  Atl.    1071;   Moon  v.  Nat.  Wall,  etc. 

8  Williamson  v.  Monroe.   101  Fed.  Co.,  66  N.  Y.  S.  33. 
332-329;  Reynes  v.  Dumont,  130  U. 


14r  JUKI8DICTI0N    OF    THE    EQUITY    COUKT.  [§   12. 

relief  that  equity  and  good  conscience  dictates;  he  must  there- 
fore show  by  his  petition  or  bill,  and  sustain  the  allegations  by 
proof,  that  he  is  entitled  in  good  conscience  to  the  equitable 
consideration  he  seeks.  So  it  must  appear  that  he  has  full}' 
and  justly  performed  his  duty  in  the  premises.  Therefore  it 
is  a  maxim  of  equit}',  applicable  in  determining  jurisdiction, 
that  "  he  who  comes  into  equity  must  come  with  clean  hands," 
and  "he  who  seeks  equity  must  do  equity."  In  Ainerican 
Ass'n  V.  Innis  '  the  court  say:  "The  maxim,  '  One  who  comes 
into  equity  must  come  with  clean  hands,'  is  as  old  as  courts  of 
equity,  and  is  the  expression  of  the  elementary  and  fundamen- 
tal conception  of  equity  jurisprudence;  and,  although  not  the 
source  of  any  distinctive  doctrines,  it  furnishes  a  most  impor- 
tant and  even  universal  rule,  affecting  the  entire  administra- 
tion of  equity  jurisprudence  as  a  system  of  remedies  and  re- 
medial rights.  It  is  based  upon  conscience  and  good  faith. 
,  ,  .  The  rule  must  be  understood  to  refer  to  some  miscon- 
duct in  regard  to  the  matter  in  litigation,  of  which  the  oppo- 
site party  can  in  good  conscience  complain  in  a  court  of  equity. 
The  ordinary  illustration  of  the  maxim  is  found  in  cases  for 
specific  performance  of  contracts  and  the  equitable  remedy 
applied  thereto.  For  instance,  if  a  contract  has  been  entered 
into  through  fraud,  or  to  accomplish  any  fraudulent  purpose, 
<i  court  of  equity  will  not,  at  the  suit  of  the  fraudulent  party, 
while  the  agreement  is  still  executory,  either  compel  its  exe- 
cution or  decree  its  cancellation.  For  instance,  where  a  debtor 
has  conveyed,  or  in  any  way  transferred,  his  property  for  the 
purpose  of  defrauding  his  creditors,  and  afterwards  seeks  to 
set  aside  the  transfer  as  against  the  grantee  or  assignee,  and 
recover  back  the  property,  the  door  of  a  court  of  equity  is  al- 
ways shut  against  such  claimant.  .  .  .  If  a  man  suing  for 
specific  performance  is  shown  to  have  defrauded  the  defendant 
in  respect  to  the  contract  sued  on,  the  maxim  would  prevent 
recovery;  but  not  so  if  it  were  shown  that  the  plaintiff,  in  ac- 
quiring title,  has  defrauded  his  own  vendor,  or  cheated  some 
third  person.  'Clean  hands'  means  a  clean  record  with  re- 
spect to  the  transaction  with  the  defendant,  and  not  with  re- 
spect to  any  third  person." 

»22  Ky.  Law  Rep.  1196,  60  S.  W.  38a 


§  12.]  JURISDICTION    OF   THE    EQUITY    COURT.  15 

And  in  Stowell  v.  Tucker^  the  supreme  court  of  Idaho  say: 
"  The  issues  made  by  the  pleadings  and  the  evidence  in  the 
record,  introduced  at  the  trial  to  support  those  issues,  show  an 
agreement  which  was  fully  executed  by  one  party  thereto. 
.  .  .  The  predecessor  in  interest  of  the  appellants  received 
the  full  benefit  that  could  accrue  to  it  from  the  contract,  even 
if  said  contract  had  been  in  writing,  acknowledged  and  re- 
corded, and  appellants  now  seek  to  evade  the  obligations  of 
said  contract  by  invoking  an  equitable  remed3^  The  appel- 
lants ask  equity,  but  refuse  to  do  equity.  The  facts  established 
by  the  record  show  that  in  a  proper  action  the  respondents 
would  have  been  entitled  to  enforce  specific  performance  of 
said  oral  contract.  ...  The  appellants  do  not  come  with 
clean  hands.  Asking  equity,  but  refusing  to  do  equity,  the 
judgment  in  this  case,  that  appellants  take  nothing  by  this 
action,  we  regard  as  correct." 

1  62  Pac.  1033  (Idaho,  1900);  Ruppel  v.  Ma  S.  &  B.  Ass'n,  158  Ma  613.  59 
S.  W.  1000. 


CHAPTER  II. 

PLEADINGS  AND  PRACTICE  IN  EQUITY. 


§  la  The  pleadings. 

14.  Practice  as  distinguished  from 

pleading. 

15.  Records  and  orders  of  the  court 


§  16.  Equity  pleading  and  practice. 
17.  The  pleadings  in  the  ordinary- 
equity  case. 


§  13.  The  pleadings. —  By  the  pleadings  in  the  equity- 
court  as  well  as  in  the  law  court  is  meant  the  papers  which 
are  prepared,  filed  in  the  court  and  served  upon  the  solicitor 
for  the  opposite  party,  if  there  is  an  appearance  in  the  cause, 
setting  forth  in  a  concise,  logical  and  formal  wav  those  facts 
and  statements  of  the  respective  parties  in  the  suit  by  which 
they  notify  the  court  and  the  opposite  party  of  their  respective 
claims  in  the  cause,  and  upon  which  they  ask  the  court  for  the 
relief  prayed  for,  or  oppose  the  granting  of  the  relief  sought 
by  the  opposite  party.  The  pleadings  in  the  cause,  therefore, 
comprise  all  the  papers  filed,  or  filed  and  served  in  the  case, 
containing  allegations  or  statements  of  the  parties  mentioned 
from  the  bill  of  complaint  to  the  final  hearing  inclusive. 

§  14.  Practice  as  distinguished  from  pleading.—  Practice 
is  very  closely  connected  with  pleading  but  may  be  distin- 
guished from  it.  It  is  the  proceedings  in  the  court  rather  than 
the  basis  of  the  proceedings;  the  manner  of  carrying  on  the 
cause  from  its  commencement  to  its  final  disposition;  as,  for 
example,  a  certain  pleading  may  be  properly  drawn  and  sub- 
ject to  no  objections  as  a  pleading,  but  it  may  be  considered 
bad  practice  to  file  it  or  meet  the  opposition  by  the  filing  and 
serving  it;  the  pleading  may  be  of  itself  a  good  pleading  but 
the  procedure  improper.  To  demur  to  a  bill  of  complaint  that 
may  be  met  by  that  pleading  would  be  both  good  pleading 
and  good  practice,  but  to  demur  to  a  bill  of  complaint  that  is 
not  demurrable  would  not  be  good  practice. 

§  15.  Records  and  orders  of  the  court. —  In  Davidson  v. 
Murphy^  the  supreme  court  of  Connecticut  say:  "A  record, 
in  judicial  proceedings,  is  a  precise  history  of  the  suit  Irom  its 

1 13  Conn.  217;  Hahn  v.  Kelly,  34  CaL  391;  Noble  v.  Shearer,  6  Ohio,  426; 
Sutcliffe  V.  State,  18  Ohio,  469. 


§§  16,  17.]  PLEADINGS    AND    PKACTICE    IN    EQDITY.  17 

commencoment  to  its  termination,  including  the  conclusion  of 
law  tnereon,  drawn  up  by  the  proper  officer,  for  the  purpose 
of  perpetuating  the  exact  state  of  facts;  or,  in  the  language  of 
Lord  Coke,  'records  are  memorials  or  remembrances,  in  rolls 
of  parchment,  of  the  proceedings  and  acts  of  a  court  of  justice, 
which  hath  power  to  hold  plea  according  to  the  course  of  the 
common  law.'"  Orders  of  the  court  during  the  progress  of 
the  suit  are  unquestionably  records,  and,  as  generally  under- 
stood, the  pleadings  as  well  as  the  procedure  make  up  the 
record  in  the  particular  case;  the  notes  of  the  testimony  of  the 
witnesses  are  often  spoken  of  as  the  record,  and  when  the 
proofs  have  been  settled,  as  in  case  of  an  appeal,  they  are 
without  question  a  part  of  the  record;  and  so  when  the  case  is 
enrolled,  although  that  proceeding  is  simply  attaching  all  the 
pleadings  and  papers,  orders  and  decrees  together  in  the  order 
in  which  they  were  filed  and  made,  and  affixing  thereto  the 
certificate  of  enrollment,  all  the  pleadings,  orders  and  proceed- 
inofs  become  the  record  of  the  case. 

g  l(i.  Equity  pleadings  and  practice. —  In  discussing  the 
subject  of  equity  pleading  and  practice,  we  are  to  treat  of  the 
manner  of  instituting  and  the  carrying  on  to  its  final  conclu- 
sion a  suit  in  equity;  the  pleadings  that  are  used  both  by  the 
complainant  and  defendant,  the  proofs  that  are  necessary,  the 
orders  that  are  made,  both  interlocutory  and  final.  To  this 
end  we  shall  first  explain  and  treat  of  the  pleadings  and  pro- 
ceedings in  an  ordinary  suit  in  equity,  noting  the  proofs  that 
must  be  made,  the  manner  of  obtaining  them,  the  hearing  of 
the  cause,  the  usual  orders  and  the  final  decree  of  the  court; 
that  is  to  say,  the  proceedings  in  such  a  case.  When  this  is 
done  we  shall  notice  ine  pleadings  and  practice  in  certain  spe- 
cial cases  most  usual  and  ordinary  in  carrying  on  the  business 
of  the  practitioner. 

§  17.  The  pleading  in  the  ordinary  equity  case. —  The 
pleadings  usually  filed  in  an  ordinary  case  in  equity  are, 
(1)  the  bill  of  complaint,  (2)  the  demurrer,  plea  or  answer  of  the 
defendant,  and  (3)  the  replication  of  the  complainant  with  the 
several  notices  incident  to  the  appearance  and  pleadings  of  the 
parties.  Of  the  pleadings  in  equity  and  the  procedure  in  an 
equity  cause  from  the  commencement  of  suit  to  a  final  decree, 
the  succeeding  chapters  will  treat. 
2 


CHAPTER  IIL 


THE  BILL  IN  EQUITY. 


18. 

The  oflBce  and  nature  of  the 
bill. 

§32. 

la 

The  parties  to  a  bill  in  equity 
are  called. 

33. 

20. 

An  information  in  equity. 

34. 

21. 

How   bills    in    equity  are    di- 

vided —  Definitions. 

35. 

22. 

(1)  How  original  bills  are  di- 

vided. 

36. 

2a 

How  original  bills  praying  re- 

lief are  divided. 

37. 

24. 

(2)  How  original  bills  not  pray- 

ing relief  are  divided. 

3a 

25. 

How  bills  not  original  are  di- 
vided. 

39. 

2& 

Certain   rules  of  pleading  ap- 
plicable. 

40. 

27. 

Chart  of  the  equity  bill. 

41. 

28. 

The  nine  parts  of  an    equity 

42. 

bill. 

4a 

29. 

(1)  The  address. 

44, 

30. 

(2)  The  introduction. 

45. 

31. 

(3)  The  premises  or  stating  part. 

46. 

47. 

The  plaintiff  must  state  his 
whole  case. 

Necessary  allegations  to  sup- 
port an  equity  case. 

Form  and  manner  of  state- 
ment. 

Setting  up  deeds,  mortgages, 
contracts,  records,  etc. 

When  must  tender  of  perform- 
ance be  made  in  the  bil' 

Allegations  as  to  adversary's 
claim. 

Allegations  of  fraud. 

The  bill  must  not  be  mtirtifan- 
ous. 

Bill  may  be  framed  with  a 
double  aspect 

Scandal  and  impertinenca 

(4)  The  confederating  part 

(5)  The  charging  part. 

(6)  The  jurisdictional  clause. 

(7)  The  interrogating  part 

(8)  Prayer  for  relief. 

(9)  Prayer  for  process. 


§  18.  The  office  and  natnre  of  the  bill.—  All  causes  in 
equity  are  commenced  by  filing  a  bill  in  equity,  or,  as  it  is  some- 
times called,  a  bill  of  complaint  or  an  information.  The  bill 
in  equity  is  somewhat  analogous  to  the  declaration  in  the  law 
courts;  it  is  a  concise,  logical  statement  of  the  complainant's 
cause  of  complaint  in  which  the  parties  are  introduced,  the 
facts  upon  which  the  relief  sought  are  stated,  and  the  relief  de- 
sired prayed  for.  All  of  the  facts  which  the  complainant  ex- 
pects to  prove  at  the  hearing,  and  upon  which  he  rests  his 
prayer  for  relief,  should  be  set  out  in  the  bill  of  complaint;  by 
this  is  not  meant  that  the  testimony  of  the  witnesses  must  be 
fully  narrated  in  the  bill,  for  superfluous  verbiage  and  useless 
repetition  will  not  be  permitted,  but  that  the  substance  of  the 


§§   19,  20.]  BILL    IN    EQUITY.  10 

case  must  be  stated  and  sufficient  of  the  facts  set  forth  to  give 
the  court  and  the  opposite  party  a  full  understanding  as  to 
the  facts  upon  which  complainant  seeks  the  relief  prayed 
for,  and  to  such  an  extent  that  when  the  testimony  is  offered 
there  will  be  no  surprise  to  the  defendant,  and  it  can  be  said 
that  the  bill  of  complaint,  by  its  allegations,  has  fully  apprised 
the  court  and  the  parties  of  the  facts  offered  in  proof.  These 
facts  must  be  stated  in  logical  form,  with  precision,  brevity, 
certainty  and  simplicity.  Equity  pleading  has,  no  doubt,  in 
these  days,  become  a  science  requiring  some  degree  of  tech- 
nical knowledge  to  master  it  in  its  various  branches.  The 
pleader,  to  successfully  draft  a  bill  in  equity,  must  know  the 
legal  principles  which  govern  his  case  and  be  able  to  clearly 
and  logically  state  his  cause  of  action  and  formulate  the  proper 
prayer  for  relief,  and  also  be  able  to  follow  the  cause  in  the 
chancery  court.  Judge  Story,  in  his  work  on  Equity  Pleading, 
says:  "The  statement  of  the  case  and  prayer  of  the  bill  for 
relief,  or  otherwise,  always  were  and  continue  to  be  to  this 
day  the  very  substance  and  essence  of  the  bill."  The  great 
importance  of  a  full,  logical  statement  of  the  case  in  the  bill 
will  be  more  fully  appreciated  from  the  fact  that  the  courts 
have  often  held  that  upon  this  statement,  with  a  prayer  for 
general  relief,  a  decree  should  be  entered  giving  to  the  com- 
plainant such  relief  as  he  is  equitably  entitled  to. 

§  19.  The  parties  to  a  bill  in  equity  are  called.— The  per- 
sons who  institute  the  proceedings  in  equity  by  filing  the  bill  are 
called  "complainants"  or  "plaintiffs;"  those  against  whom  the 
action  is  brought,  "defendants."  The  complainant  in  the  bill  is 
called  "orator;"  if  a  female,  "oratrix."  If  the  proceeding  is 
by  information,  the  person  upon  whose  relation  the  informa- 
tion is  filed  is  called  "  relator." 

§  '20.  An  information  in  equity.— "When  a  suit  in  equity  is  in- 
stituted on  behalf  of  the  state  or  the  government,  or  those  who 
are  under  its  immediate  protection  or  control  —  as,  for  example, 
idiots  or  lunatics, —  the  pleading  presenting  the  matter  of  com- 
plaint is  called  an  "information,"  and  is  exhibited  in  the  name 
of  the  attorney-general  or  the  proper  law  officer  of  the  state.  If 
the  suit  immediately  concerns  the  state,  the  bill  is  exhibited  on 
the  relation  of  the  attorney-general;  if  not,  it  may  be  at  the 
instance  of,  and  under  the  direction  of,  a  person  whose  name 


20  BILL   IN    EQUITY.  [§§  21-23. 

is  inserted  and  called  a  " relator."  ^  Informations  differ  from 
bills  in  equity  only  in  form,  and  generally  it  may  be  said  that 
the  same  rules  apply. 

§  21.  How  bills  in  equity  are  divided  —  Definition.—  Bills  in 
equityare  of  two  general  classes:  (1)  Original  bills,  and  (2)  bills 
not  original.  If  the  bill  is  based  upon  new  matter  and  is  for 
an  original  object  —  that  is,  does  not  relate  to  matter  that  has 
already  been  litigated  by  the  same  parties  standing  in  the  same 
interests,— it  is  an  original  bill.  Thegreat  bulk  of  chancery  cases 
are  prosecuted  by  original  bill;  if  the  bill,  however,  relates  to 
some  matter  that  has  already  been  litigated  in  the  same  court  by 
the  same  parties,  and  is  filed  simply  as  an  addition  to,  or  a  con- 
sideration of,  the  original  bill,  it  is  called  a  "  bill  not  original."  "- 

§  22.  How  original  bills  are  divided.—  Original  bills  are  di- 
vided into  (1)  original  bills  praying  relief,  and  (2)  original  bills 
not  praying  relief.  At  first  blush  this  division  may  seem  not 
to  be  supported  by  the  facts  which  the  bills  themselves  dis- 
cover, for  it  may  be  said  that  every  bill  in  equity  prays  for  re- 
lief; but  by  an  examination  of  the  prayers  of  the  bills  of  the 
different  classes  it  will  be  seen  that  there  is  a  distinction  which 
clearly  marks  the  difference  indicated.  (1)  The  bill  praying 
relief  includes  that  class  where  a  full  and  complete  settlement 
of  the  rights  of  the  parties  is  sought  upon  the  merits  of  the 
case  set  forth  in  the  bill  and  a  redress  of  the  wrongs  complained 
of;  while  (2)  bills  not  praying  relief  are  those  which  ask  the 
aid  of  the  court  against  possible  future  injury  to  assist  by  way 
of  discovering  facts  or  proofs  to  support  or  defend  a  suit  in 
another  court  and  are  not  for  relief  in  the  same  suit. 

§  23.  How  original  bills  praying  relief  are  divided.—  Orig- 
inal bills  praying  relief  are  divided  into  three  classes,  according 

1" There  has  never  been  any  rule  2 story,  Eq.  PI.,  sec.  16.     "Besides 

in  equity  preventing   the  attorney-  original  bills,  there  are  other  bills  in 

general  from  acting  on  relation,  so  use  in  courts  of  equity,  which  are 

long  as  the  grievance  is  one  affect-  filed  when  it  becomes  necessary  to 

ing  the  public  interests,  and  he  re-  supply  any  defects   existing  in  the 

tains  control  of  the  suit."  Attorney-  form  of  the  original  bill,  or  which 

General    v.    Board    of  Auditors,  73  may  have  been  produced  by  events 

Mich.  53;  Miller  v.  Grandy,  13  Jlich.  subsequent  to  the  filing  of  it     Bills 

540;  United  States  v.  Hughes  et  al,  of  this  description  are  called  '  bills 

11  How.  (U.S.)  552;  MuHan  v.  United  which  are  not  original.'"    1  Barb. 

States,  118  U.  S.  271;  United  States  Oh.  Pr.  34. 
V.  Union  Pacific  R.  Co.,  98  U.  S.  569: 
Story,  Eq.  PI.,  sec.  8. 


5  24.]  BILL    IN    EQUITY.  21 

to  the  kind  of  relief  sought.  (1)  Bills  in  which  the  complainant 
prays  for  a  decree  of  the  court  settling  certain  rights  and  equi- 
ties claimed  by  him  in  opposition  to  certain  claimed  or  pre- 
tended rights  or  equities  of  the  defendant.  These  are  the  most 
usual  bills  employed  in  equity  causes.  (2)  Bills  of  interpleader, 
wherein  the  complainant  claims  no  rights  or  equities  in  the 
subject-matter  of  the  litigation  in  opposition  to  the  rights  of 
the  defendants,  but  on  the  contrary  allege  that  the  defendants, 
one  or  the  other  of  them,  is  entitled  to  a  decree  of  the  court, 
and  prays  a  decree  determining  which  of  the  defendants  is  en- 
titled to  the  subject-matter  of  the  litigation,  and  that  the  com- 
plainant, after  obeying  such  decree,  may  be  discharged  from 
all  liability  on  account  of  the  conflicting  claims  of  the  parties 
defendant;  as,  for  example,  when  the  complainant  is  in  posses- 
sion of  certain  propert}''  to  which  he  does  not  claim  title, 
and  it  is  demanded  of  him  by  two  or  more  persons  claiming 
it  adversely,  the  possessor  being  entirely  willing  to  deliver  it 
to  the  rightful  owner;  but  if  he  delivers  it  to  one  of  the  claim- 
ants, another  who  claims  to  be  the  owner  threatens  to  bring 
suit  against  him  for  the  value  of  the  property,  while  if  he  de- 
livers it  to  that  claimant  he  is  likewise  threatened  by  the  other 
party,  such  an  one  may  file  a  bill  setting  up  the  facts  and  pray- 
ing the  decree  of  the  court  as  to  whom  the  property  belongs, 
and  as  to  whom  he  shall  deliver  the  same.  To  this  end  he  may 
pray  that  they,  the  defendants,  be  interpleaded  and  settle  the 
controversy.  (3)  Bills  of  certiorari  are  the  third  class,  and  at 
one  time  used  to  obtain  the  removal,  or  a  writ  for  the  removal, 
of  an  equity  case  from  an  inferior  to  a  superior  court  to  which 
the  writ  was  returnable.  These  bills  are  no  longer  used,  as 
the  modern  practice  is  supplied  with  a  more  direct  and  practical 
method  for  accomplishing  the  removal  of  causes  to  higher  courts. 
§24.  (2)  How  original  bills  not  praying  relief  are  divided. — 
Original  bills  not  praying  relief  are  of  two  kinds:  (1)  Bills  to 
secure  evidence;  that  is,  bills  to  perpetuate  the  testimony  of 
witnesses,  or  to  examine  witnesses  de  bene  esse;  and  (2)  bills 
of  discovery,  that  is,  bills  asking  for  facts  within  the  defend- 
ant's own  knowledge,  or  asking  for  records,  deeds  or  writings 
in  his  custody  or  under  his  control.  They  are  bills  that  through 
th»  answer  to  them  by  the  defendant  it  is  sought  to  discover 
facts  that  may  be  used  in  evidence.  These  facts  are  generally 
discovered,  as  we  shall  see,  by  putting  certain  interrogatories 


22  BILL    IN    EQUITY.  [§§  25,  26. 

to  the  defendant  in  the  bill  of  complaint  to  which  in  his  an- 
swer to  the  bill  he  is  bound  to  reply. 

§25.  How  bills  not  original  are  divided. —  Bills  not  original 
are  divided  into  (1)  supplemental  bills ;  that  is,  bills  that  are  filed 
to  supply  some  defect  or  irregularity,  or  to  add  to  the  original 
bill  because  of  the  happening  of  certain  events  after  the  filing 
of  such  original  bill,  wbich  are  material  to  the  complainant's 
case.  (2)  Or  for  the  purpose  of  cross-litigation;  as  where  the 
defendant  needs  some  affirmative  relief  in  the  same  litigation. 
(3)  Or  to  impeach  a  decree  for  fraud.  Or  (4),  under  certain 
circumstances,  or  because  of  newly-discovered  evidence,  to 
suspend  a  decree.  Or  (5)  to  carry  a  decree  into  effect,  where, 
because  of  neglect  or  some  other  cause,  it  becomes  impossible 
to  do  so  without  the  further  order  of  the  court.  Or  (6),  a  bill 
of  revivor,  which  is  to  revive  the  original  bill  when  from  some 
cause,  as  because  of  the  death  of  the  party,  the  suit  would  abate. 
Or  (T),  bills  of  review;  that  is,  bills  to  review,  alter  or  reverse 
the  decree  of  the  court  for  errors  in  law,  or  for  newly-dis- 
covered evidence  which  with  reasonable  diligence  could  not 
have  been  discovered  at  the  time  of  the  hearing  of  the  orig- 
inal bill.  These  several  bills  will  be  noticed  in  detail  in  later 
chapters  as  it  becomes  necessary  to  discuss  them. 

§  26.  Certain  rules  of  pleading  applicable. —  There  are 
certain  rules  of  pleading  which  are  applicable  to  equity  as  well 
as  to  common-law  pleading;  as,  for  example,  it  is  not  necessary 
to  state  in  the  bill  facts  of  which  the  court  is  bound  to  take 
judicial  notice,  as  matters  of  law  or  legal  presumption;  or  to 
recite  public  acts;  or  aver  facts  of  which  the  court  has  judicial 
knowledge;  such  as  certain  geographical  boundaries,  the  bound- 
aries of  states,  or  the  division  of  the  state  where  the  court  is  sit- 
ting, into  counties ;  or  the  practice  and  procedure  of  the  court  in 
which  the  cause  is  pending,  or  any  fact  of  a  public  nature  that 
is  generally  and  fully  understood;  as  ports  in  which  tide  ebbs 
and  flows;  boundaries  of  judicial  districts;  of  the  law  and  juris- 
prudence of  the  several  states  of  the  United  States.^  But  the 
law  and  jurisprudence  of  foreign  states  must  be  averred  and 
proven.  The  degree  of  certainty  required  in  equity  pleading 
is  not  so  strict  as  in  common-law  pleading;  but,  as  we  have 

1  Town  of  North  Hempstead  v.  v.  Paul,  60  Neb.  7, 82  N.  W.  98;  People 
Gregory.  65  N.  Y.  S.  867;  Betclier  v.  v.  Curley,  99  Mich.  238;  Jackson  v. 
Insurance  Co.,  78  Minn.  240;  Green     Kansas  City,  etc.  Co.,  157  Mo.  621.  58 


§  20.] 


BILL    IN    EQUITY. 


23 


said,  the  allegations  must  be  stated  logically  and  with  certainty. 
And  no  doubt  "there  are  some  cases  in  which  the  same  de- 
cisive and  categorical  certainty  is  required  in  a  bill  in  equity 
as  in  a  declaration  at  common  law.  But  in  most  cases  general 
certainty  is  sufficient  in  pleadings  in  equity."* 

The  title  or  claim  of  the  complainant,  the  injury  or  griev- 
ance complained  of,  must  be  alleged  with  such  reasonable  cer- 
tainty and  accuracy  that  the  defendant  may  be  fully  and  dis- 
tinctly informed  of  the  plaintiff's  case.  It  is  generally  con- 
ceded that  certainty  in  pleading  in  courts  of  equity  is  required, 
but  certainty  to  a  common  intent  is  sufficient  in  the  bill  or 
answer.2  Or,  as  has  been  said,  "general  certainty  is  sufficient 
in  pleading  in  equity." ' 


S.  W.  32;  City  of  Evansville  v.  Frazer, 
24  Ind.  App!  628,  56  N.  E.  729;  Bank 
of  Montreal  v.  Taylor,  88  111.  App. 
388.     In  Detroit,  etc.  R.  Co.  v.  Com- 
mon Council,  125  Mich.  673,  85  N.  W. 
96,  it  was  held  that  the  court  would 
take  judicial  knowledge  that  a  street 
railroad  has  a  large  market   value, 
and  that  it  is  very  much  greater  in 
amount  than  could  be  obtained  for 
it  if  it  were  dismantled  and  its  rails, 
cars,   motors,   etc.,   were  sold   sepa- 
rately.    In  Jolmson  v.  Hutchinson, 
81  Mo.  App.  299,  it  was  held  that  the 
court  would  take  judicial  notice  of 
the  location  of  a  town  in  a  certain 
county  of  the  state.     Moon  v.  Mo. 
Pac,  R.  Co.,  83  Mo.  App.  45a     In  Mc- 
Coy V.  World's  Col.  Exposition,  186 
111.  356,  57  N.  E.  1043,  it  was  held  that 
the  court  would  take  judicial  notice 
of  the  Columbian  Exposition  as  a  his- 
torical fact.     In  Neely  v.  Henkel,  180 
U.  S.  109,  45  L.  Ed.  448,  it  was  held 
that  the  court  would  take  judicial 
notice  that  the  Island  of  Cuba  was 
at  the  date  of  the  act  of  congress  of 
June  6.   1900,  and  still  is,  occupied 
and  under  the  control  of  the  United 
States.     As  to  statutes   of    foreign 
states,  however,  it  has  generally  been 
held  that  they  must  be  proven  by 
competent  evidence,   and  that  the 
courts  will  not  take  judicial  knowl 
edge  of  such  statutes.  Barr  v.  Closter- 


man,  1  Ohio  C.  D.  546;  Gill  v.  Ever- 
raan,  94  Tex.  209,  59  S.  W.  531. 

The  rule  at  law  that  a  party  plead- 
ing a  contract  need  only  state  it  ac- 
cording to  its  legal  effect  is  substan- 
tially the  same  in  equity.  Meers  v. 
Stevens,  106  III.  549.  Allege  with 
certainty  and  clearness.  Watson  v. 
Murray,  23  N.  J.  Eq.  257;  Search  v. 
Search,  37  N.  J.  Eq.  137;  Mclntyre  v. 
The  Trustees  of  Union  College,  etc., 
6  Paige  (N.  Y.),  239.  Matters  of  in- 
ference and  argument.  Hood  v.  In- 
man,  4  Johns.  Ch.  437. 

1st.  Louis  v.  Knapp.  104  U.  S.  658, 
661,  citing  Cooper's  Eq.  PI.  5. 

2Paterson,  eta  Ry.  Co.  v.  The 
Mayor,  etc.,  9  N.  J.  Eq.  434;  Harrison 
V.  Farrington,  40  N.  J.  Eq.  353. 

» Gogherty  v.  Bennett,  37  N.  J.  Eq. 
87;  Story,  Eq.  PL,  sec.  241.  Allega- 
tions as  to  titia  McClannahan  v. 
Davis,  49  U.  S.  (8  How.)  170;  West  v. 
Reynolds,  35  Fla.  317,  17  So.  740; 
Walker  v.  Williams,  30  Miss.  165.  In 
Miller  v.  Stalker,  158  111.  514,  42  N.  E. 
79,  it  was  alleged  in  a  general  way 
that  the  plaintiff  obtained  title  to 
the  property  in  question  by  "divers 
deeds,  wills,  devises,"  etc.  It  was 
held  that  this  was  not  sufficient,  as» 
it  stated  conclusions,  not  facta 

Certainty:  A  contract  need  oniy 
be  stated  as  to  its  legal  effect.  Menrs 
v.  Stevens,  106  111.  549. 


24 


BILL    IN    EQUITY. 


[§27. 


§  27.  Chart  of  the  equity  bill.— 

f 


AU  suits 

in 

equity   are 

commenced: 


(1)  By  biU 
in  equity. 


Original  bills. 


Bills  not  original. 


Bills  praying 
relief. 


Bills  not  praying 
relief. 


(1)  Supplemental 
bills. 


'     The  ordinary  bill  la 
equity  praying  relief. 

Bill  of  interpleader. 
BUI  of  certiorari. 


BUI    to 
dence. 


secure    evt 


(8)  Cross-bills. 


Bin  to  impeach 
decree, 
or 


(4) 


To  suspend  a 
decree, 


(6)  To  carry  decree 
into  effect. 


(6)  BiU  of  revivor. 


(7)  Bills  of  review. 


I 


Bills  of  discovery. 

BUls  to  supply  some 
irregularity  in  the  orig- 
inal biU,  or  some  de- 
■  feet  in  the  su't;  be- 
cause of  events  that 
have  occurred  after 
original  suit  is  at 
issue. 

BUls  filed  by  defend- 
ant in  original  suit  to 
obtain  affirmative  re- 
lief in  the  same  mat- 
ter. 

For  fraud. 

Under  special  cir- 
cumstances, 
or 
Because  of  facts  dis- 
covered after  the  hear- 
ing of  the  cause,  and 
after  the  decree  is  set- 
^  tied. 

When  from  neglect 
or  other  cause  it  is  im- 
possible without  the 
further  order  of  the 
court. 

Bill    to    revive     the 

original    bill     \v  b  e  n 

from  some  cause  —  as 

the  death  of  a  party  — 

.  the  suit  would  abate. 

A  bUl  to  review,  j 
alter  or  reverse  the  > 
decree  of  the  court. ' 


(2)  By  infor- 
mation. 


BUls  instituted 
in  behalf  of  the 
state,  or  for 
those  whose 
rights  are  the  ob- 
ject of  its  care 
and  protection. 


(1)  In  the  name  of  the  attorney-general 
when  the  suit  Immediately  concerns  the 
state;  or, 

(2)  If  not  at  the  instance  of,  and  under  the 
direction  of  a  person  whose  name  is  in- 
serted —  called  a  relator. 


§  27.]  BILL   IN   EQUITY. 


25 


(     A  bill  praylDg  the  decree  of  the  court  as  to  rights  claimed  by  the  complainant  in  oppo- 
'  sition  to  the  claims  of  defendant.  *^*^ 

1     Bill  where  complainant  claims  nothing  in  opposition  to  the  claims  of  the  several  defend- 
ants,  but  asks  that  the  adverse  claims  of  the  defendants  be  settled  by  a  decree. 

^     A  bUl  praying  for  a  writ  to  remove  a  cause  to  a  superior  court  -  now  obbolete. 
1     To  perpetuate  testimony. 


To  examine  witnesses  de  betie  ease. 

Asking  for  facts  in  defendant's  own  knowledge, 

or 
For  records,  deeds,  or  writing  in  his  custody,  or  undej-  hia  control,  eta 


[  (1)  A  bill  of  review  for  error  In  lavr. 


I  (])  A  bill  of  review  for  error  In  law. 
Of  two  kinds:  j  (2)  For  new   matter  discovered  after  decree,  which  with  reasonable  dill- 
t    gence  could  not  have  been  discovered  before. 


26  BILL   IN    EQUITY.  [§§  28-30. 

§  28.  The  nine  parts  of  an  equity  bill.— Equity  bills  were 
formerly  composed  of  nine  parts,  but  the  more  modern  rules 
of  pleading  do  not  require  that  the  bill  should  contain  all 
these.  They  are:  (1)  The  address;  (2j  The  introduction ;  (3)  The 
premises  or  stating  part;  (4)  The  confederating  part;  (5)  The 
charging  part;  (6)  The  jurisdictional  clause;  (7)  The  inter- 
rogating part;  (8)  The  prayer  for  relief;  and  (9)  The  prayer 
for  process. 

§  29.  (1)  The  address. —  The  address,  or,  as  it  is  sometimes 
called,  the  direction  of  the  bill,  is  that  part  by  which  it  is  ad- 
dressed or  directed  to  the  court  from  which  relief  is  sought. 
In  the  United  States  court  the  bill  is  addressed  to  the  judges 
of  the  court;  as,  for  example:  "To  the  Honorable,  the  Judges 
of  the  District  [or  Circuit]  Court  of  the  United  States  in  and 
for  the  District  of ."  In  the  several  state  courts  the  ad- 
dress is  governed  by  the  title  of  the  court  in  which  the  bill  is 
filed.  In  the  state  of  Michigan  the  usual  form  is,  "  To  the  Cir- 
cuit Court  for  the  County  of ,  in  Chancery."  In  Illinois,  "  To 

the  Honorable ,  Judge  of  the  Circuit  Court  of  the 

County  of ,  in  the  State  of  Illinois."     There  is  no  settled 

form  of  address  except  in  those  states  where  it  is  prescribed  by 
rule  or  statute,  and  the  only  requirement  usually  is  that  it 
should  be  addressed  to  the  court  by  its  correct  title  in  which 
the  complainant  seeks  the  relief  prayed  for  in  his  bill. 

§  30.  (2)  The  introduction.— In  this  part  of  the  bill  the 
party  complainant  is  introduced;  his  name  and  residence,  and 
the  character  in  which  he  sues,  and  such  description  as  to  give 
to  the  court  jurisdiction  is  stated.  In  the  United  States  court 
it  is  required  by  rule  that  the  defendant  as  well  as  the  com- 
plainant shall  be  named  in  this  part  of  the  bill,  giving  his 
abode  and  citizenship.^  This  is  particularly  necessary  because 
not  infrequently  upon  the  fact  that  the  parties  are  residents  of 
different  states  depends  the  jurisdiction  of  the  court;  ^  but  it 

iThe    twentieth    United     States  Fed.   708.     Under  rule    20    (United 

equity  rule  provides:  "Every  bill  in  States  court)  the  bill  must  give  the 

the  introductory  part  thereof  shall  residence  of  the  parties.     Harvey  v. 

contain  the  names,  places  of  abode  Richmond  R  Co.,  64  Fed.  19,  Parties 

and  citizenship  of  all    the    parties  should  be  described   by  the  names 

plaintiff    and     defendant     by    and  by  which    they  are  known.     Kirk- 

against  whom  tlie  bill  is  brought."  ham  v.  Justice,  17  111.  107;  Ransome 

2  United  States  v.  Pratt,  etc.  Co.,  18  v.  Geer,  30  N.  J.  Eq.  249;  McKay  v. 


e   31.1  BILL   IN    EQUITY.  2< 

has  been  held  that  matter  which  is  properly  introductory  may 
be  stated  elsewhere  in  the  pleading,  as  in  case  of  the  citizen- 
ship of  a  corporation.  In  Muller  v.  Dows  '  the  court  say:  "  A 
suit  may  be  brought  in  the  federal  courts  by  or  against  a  cor- 
poration, but  in  such  a  case  it  is  regarded  as  a  suit  brought  by 
or  against  the  stockholders  of  the  corporation;  and,  for  the 
purposes  of  jurisdiction,  it  is  conclusively  presumed  that  all 
the  stockholders  are  citizens  of  the  state  which,  by  its  laws, 
created  the  corporation.  It  is  therefore  necessary  that  it  be 
made  to  appear  that  the  artificial  being  was  brought  into  ex- 
istence by  the  law  of  some  state  other  than  that  of  which  the 
adverse  party  is  a  citizen.  Such  an  averment  is  usually  made 
in  the  introduction,  or  in  the  stating  part  of  the  bill.  It  is 
always  there  made  if  the  bill  is  formally  drafted.  But  if  made 
anywhere  in  the  pleadings  it  is  sufficient."  ^ 

§  :31.  (3)  The  premises  or  stating  part.—  In  this  part  of 
the  bill  the  complainant  must  set  forth  by  positive  averments 
all  the  essential  facts  of  his  case.  It  must  be  here  shown  dis- 
tinctly and  unambiguously  that  the  complainant  is  entitled  to 
the  relief  prayed  for.  In  Fox  v.  Pierce'  it  was  held  that 
the  complainant  must  state  his  case  with  such  sufficient  clear- 
ness and  certainty  that  if  the  facts  were  admitted  by  an 
answer,  or  proved  at  the  hearing,  the  court  would  be  able  to 
make  a  decree  upon  it.  In  Wright  v.  Dame*  the  court  of 
Massachusetts  say :  "  The  rules  of  pleading  require  that  every 
material  averment  that  is  necessary  to  entitle  the  plaintiff  to 
the  relief  prayed  for  must  be  contained  in  the  stating  part  of 
the  bill;  and  this  is  a  useful  rule  for  the  preservation  of  form 
and  order  in  the  pleadings.  This  part  of  the  bill  must  contain 
the  plaintiff's  case,  and  his  title  to  relief;  and  every  necessary 
fact  must  be  distinctly  and  expressly  averred,  and  not  in  a 
loose  and  indeterminate  manner,  to  be  explained  by  inference, 
or  by  reference  to  other  parts  of  the  bill."  '     The  evidence  of 

McKay,   28  W.  Va.   514;  Kanawha,        5  Greater  latitude  must  necessarily 

etc.  Bank  v.  Wilson,  35  W.  Va.  86, 13     be  allowed  as  to  conciseness  in  state- 

g  g  5g  ment  where  the  conaplainant  seeks 

'  1  94  U.  S.  444.  equitable  relief.      John  D.  Park  & 

2  Lafayette   Ins.  Co.  v.  French  et     Sons  Co.    v.  Nat.  etc.  Ass'n,  52  N.  Y. 
al.,  18  How.  (U.  S.)  404.  S.  475.     But  where  the  bill  is  so  de- 

3  50  Mich.  500.  fective  that  it  is  impossible  to  deter- 

4  22  Pick.  (Mass.)  55,  59.  mine  the  question  that  is  attempted 


n 


28 


BILL    IN    EQUITY. 


[§32. 


the  facts  of  the  plaintifiF's  case  should  not  be  stated,  but  simply 
averments  of  the  essential  facts  constituting  the  case.'  This 
is  the  most  important  part  of  the  bill  of  complaint;  it  is  here 
the  complainant  must  make  out  a  case  that  will  entitle  him  to 
a  decree  of  the  court.  To  this  part  of  the  bill  the  defendant 
will  look  to  determine  whether  he  will  demur,  plead,  or  answer. 
From  these  allegations  the  court  will  determine  whether  the 
prayer  for  relief  can  be  supported;  for  it  is  a  universal  rule 
that  the  stating  part  of  the  bill  must  be  consistent  with,  and 
must  support  the  prayer.^  If  the  complainant  fails  to  state 
an  equitable  case,  that  is,  a  case  that  will  fall  within  some  of 
the  causes  for  which  the  court  of  equity  will  assume  jurisdic- 
tion, upon  demurrer  the  bill  will  be  dismissed.^ 

^  3*2.  The  plaintiff  must  state  his  whole  case.— It  is  the 
aim  of  the  equity  court  to  settle  in  one  suit  the  whole  contro- 
versy; it  therefore  follows  that  the  complainant  in  the  stating 
part  of  the  bill  must  state  fully  all  of  the  facts  relating  to  the 


to  be  presented  upon  demurrer,  it  will 
be  dismissed.  Savage  v.  Worsham, 
104  Fed.  la  It  is  sufficient,  however, 
if  the  complaint  states  the  legal 
facts  of  the  complainant's  claim- 
Riley  v.  Hodgkins,  57  N.  J.  Eq.  278. 
41  Atl.  1099;  Hubbard  v.  Trust  Co., 
30  C.  C.  A.  520. 

1  Seals  V.  Robinson  &  Co.,  75  Ala. 
363;  Shepard  v.  Shepard,  6  Conn.  37; 
Barnard  v.  Cusliman,  35  111.  451: 
Winebrenner  v.  Colder  et  al.,  43  Pa. 
St.  244-51;  Penn  v.  Fogler,  182  111. 
76,  55  N.  E.  192;  Stille  v.  Hess,  112 
Mich.  678;  McMahon  v.  Rooney,  93 
Mich.  391.  Facts  must  be  alleged 
positively  and  cannot  be  inferred 
from  other  allegations  of  fact.  Man- 
ning V.  Drake,  1  Mich.  34.  If  the 
averments  of  the  bill  give  full  in- 
formation as  to  the  claim  sought  to 
be  enforced  the  allegations  are  suffi- 
cient Evans  v.  Grand  Rapids,  etc. 
Co..  6S  Mich.  603.  Must  be  allegations 
of  facts,  not  recitals  of  circumstan- 
tial evidence.  The  bill  should  show 
the  theory  on  which  complainant  re- 
lies. Wilson  V.  Eggleston,37Mich.  257. 


2  Howell  V.  Rome,  etc.  Co.,  102  Ga, 
174,  29  S.  E.  178. 

3  Jarvis  v.  Martin,  45  W.  Va.  847, 
31  S.  E.  957;  Hood  v.  Morgan,  47  W. 
Va.  817,  35  S.  R  911.  Held,  every 
fact  that  is  necessary  to  make  out 
the  case  must  be  certainly  and  posi- 
tively alleged,  for  the  court  pro- 
nounces its  decree,  basing  it  upon 
the  allegations  stated  in  the  bill  as 
well  as  upon  the  evidence  at  the 
hearing.  And  in  Brooks  v.  Lowen- 
stein  et  aL.  124  Ala.  158,  27  So.  520,  a 
bill  was  held  bad  upon  demurrer  for 
inconsistency  and  repugnancy.  In 
Edwards  v.  Bay  State  Gas  Co.,  91 
Fed.  946.  held,  that  if  the  bill  con- 
tains matter  properly  pleaded  con- 
stituting grounds  for  equitable  relief, 
it  is  not  demurrable.  As  to  certaintj', 
see  Corbus  v.  Alaska,  etc.  Co.,  99  Fed. 
334;  Ter  Knile  v.  Red  dick.  —  N.  J. 
Ch.  (1898),  39  Atl.  1062;  Baltimore, 
etc.  Co.  v.  Coats,  85  Md.  531;  Post  v. 
Beacon,  etc.  Pump  Co.,  28  C.  C.  A. 
431, 84  Fed.  371;  Highstone  v,  Franks, 
93  Mich.  52. 


00. 
P   33  1  ^^^^    ^^    EQUITY. 

contention  of  the  parties  which  is  sought  to  be  litigated.  The 
court  will  not  allow  the  complainant  to  divide  the  action  by 
pnttin-  a  portion  of  the  case  into  his  bill  and  thus  expose  the 
defencFant  to  further  and  repeated  litigation  concerning  the 
same  matter.  Such  a  course  would  be  favorable  to  the  per- 
mitting of  a  multiplicity  of  suits  rather  than  avoiding  it  as 
equit/^seeks  to  do;  it  would  tend  to  permit  rather  than  to  dis- 
courage unreasonable  litigation;  and  so  it  would  seem  that  it 
it  cleifrly  appears  upon  the  face  of  the  bill  that  the  whole  con- 
troversy has  not  been  stated,  and  is  not  sought  to  be  settled, 
the  bill  on  demurrer  would  be  dismissed.^ 

§  33    I^ecessary  allegations  to  support  an  equity  case.— 
The  complainant  in  the  stating  part  of  the  bill  must  allege 
sufficient  facts  to  support  the  case  in  equity  upon  which  he 
prays  relief.    There  must  be  (1)  a  suhjeot  of  tJie  litigation,  which 
mav  be  property  or  property  rights,  legal  or  equitable,  or  some 
personal  right  of  the  complainant  which  is  sought  to  be  pro- 
tected; the  performance  of  a  duty  upon  the  part  of  the  defend- 
ant- the  prohibition  of  a  wrong  or  threatened  injury.     "Equi- 
table remedies,"  says  Pomeroy,  "are  distinguished  by  their 
flexibility,  their  unlimited  variety,  their  adaptability  to  cir- 
cumstances, and  the  natural  rules   which  govern  their  use. 
There  is  in  fact  no  limit  to  their  variety  and  application;  the 
court  of  equity  has  the  power  of  devising  its  remedy  and  shap- 
ino-  it  so  as  to  fit  the  changing  circumstances  of  every  case  and 
the  complex  relations  of  all  the  parties."^     Whatever  the  sub- 
ject of  the  litigation  may  be,  it  must  be  described  clearly  and 
with  certainty  in  the  bill  of  complaint,  and  shown  to  be  of 
such  a  nature  that  equity  will  assume  jurisdiction  of  it.    (2)  The 
hill  must  show  title  in  the  complainant  in  the  subject-matter,  or 
such  a  claim  as  gives  to  the  complainant  the  right  to  have  the 
injury  to  the  subject-matter  or  wrong  with  relation  to  it  cor- 
rected.    The  English  courts  have  held  that  the  title  must  be 
stated  "with  great  clearness,  but  the  American  courts  are  not 
so  strenuous  and   have  generally  required  less  strictness  in 
allegations  of  title;  and  so  when   complainant  alleged  that 
he  was  the  owner  and  in  possession  of  certain  lands,  and  be- 

1  Story,  Eq.  PL,  sec.  287;  Purefoy    nary  v.  Kiefer,  43  Mich.  lOo;  Vincent 
V   Purelov.  1  Vern.  29;  Mitf.  Eq.  PL,     v.  Moore,  51  Mich.  618. 
by  Jeremy,  183;  Gernmn-Am.  Semi-        ^Pom.  Eq.  Jur.,  sec.  109. 


30 


BILL    IN    EQUITY. 


[§33. 


cause  of  the  wrong  complained  of  he  was  damaged  or  injured, 
it  was  held  suiBcient.^  The  interest  must  be  a  real  and  valu- 
able one,  and  not  merely  a  matter  of  feeling  or  desire  for  the 
correction  of  a  wrong,  or  for  the  reparation  or  an  in jui-y;  and  the 
bill  must  allege  title  in  the  complainant  not  only  at  the  time  of 
the  wrong  complained  of,  but  at  the  time  of  the  filins:  of  the  com- 
plaint.^    The  failure  of  the  bill  to  show  an  interest  in  the  com- 


i  Story,  Eq.  PL,  sec.  508a;  Manning 
v.  Fifth  Parish,  etc.,  6  Pick.  (Mass.) 
6;  Lamb  v.  Jeffrey,  47  Mich.  28.  In 
Smitli  V.  Austin,  9  Mich.  465,  the 
court  say:  "If  the  complainant  has 
shown  no  title  or  interest  in  the 
premises,  he  has  shown  no  right  to 
be  protected  by  the  redemption:  and 
a  court  of  equity  will  not  lend  its  aid 
to  enforce  his  right,  as  a  volunteer, 
to  pay  off  a  mortgage  on  the  lands 
of  another,  nor  subrogate  him  to  the 
rights  of  a  mortgagee  under  a  mort- 
gage thus  paid  by  him.  But  the 
interest  required,  as  the  basis  of  a 
right  to  redeem,  need  not  be  the  fee 
subject  to  tlie  mortgage,  or  the  whole 
of  the  mortgagor's  original  equity  of 
redemption  (except  in  some  cases  of 
a  statute  redemption  thus  limited). 
Any  person  who  may  have  acquired 
any  interest  in  the  premises,  legal  or 
equitable,  by  operation  of  law  or 
otherwise,  in  privity  of  title  with 
the  mortgagor,  may  redeem  and  pro- 
tect such  interest  in  the  land.  But  it 
must  be  an  interest  in  the  land,  and  it 
mast  ha  derived  in  some  way,  medi- 
ate or  immediate,  from  or  through, 
or  in  the  right  of,  the  mortgagor;  so 
as,  in  effect,  to  constitute  a  part  of 
tlie  mortgagor's  original  equity  of 
redemi)tioD.  Otherwise  it  cannot  be 
affected  by  the  mortgage  and  needs 
no  redemption.  But  whatever  may 
be  the  title  or  interest  claimed,  it 
must,  in  some  way,  appear  on  the 
face  of  the  bill,  and  the  nature  and 
extent  of  it  must  be  set  forth;  and, 
if  the  bill  be  not  brought  by  the 
mortgagor,  it  must  be  shown  how 


complainant  became  entitled  to  it; 
unless  the  bill  distinctly  sets  up  some 
special  matter  of  estoppel,  and  ex- 
pressly relies  upon  it  as  such." 

'  Allegations  —  Title  or  interest: 
Wiggin  V.  Mayor  of  New  York,  9 
Paige  (N.  Y.),  16.  A  bill  for  relief 
for  an  injury  to  the  property  of 
plaintiff  must  show  not  only  that  he 
was  owner  at  the  time  of  the  injury, 
but  that  he  was  owner  at  the  time 
of  filing  the  bilL  If  it  appears  from 
complainant's  bill  that  he  is  without 
equitable  title  the  bill  should  be 
dismissed,  for  equity  has  no  jurisdic- 
tion. Walker  v.  Williams,  30  Miss. 
165,  Complainant  in  bill  with  prayer 
for  general  relief  may  have  such  re- 
lief as  the  facts  stated  and  proved 
entitle  him,  without  having  averred 
title  to  that  particular  relief.  Mc- 
Millan V.  James,  105  111.  194. 

Allege  title  in  complainant:  Not 
necessary  to  explicitly  allege,  if  it  can 
be  fairly  inferred  from  allegations. 
Webber  v.  Gage,  39  N.  H.  182. 

Sufficient  allegations:  A  want  of 
allegations  in  the  bill  to  sustain  the 
relief  sought  is  as  fatal  as  the  lack  of 
proof  to  show  complainant  entitled 
to  such  relief.  Quinn  v.  McMahan, 
40  111.  App.  593.  A  bill  should  con- 
tain allegations  of  facts  and  not 
mere  recitals  of  circumstantial  evi- 
dence, and  should  show  the  theory 
on  which  complainant  relies.  Wilson 
v.  Eggleston,  27  Mich.  257.  Every 
bill  must  contain  sufficient  matter  of 
fact  of  itself  to  maintain  complain- 
ant's case.  Bracken  v.  Preston,  1 
Pin.  (Wi&)  584, 


I  34,]  BILL   IN    EQUITY.  31 

plainant  in  the  subject-matter  of  the  suit  renders  it  demurrable. 
If  complainant  sues  in  some  official  or  other  capacity  than  his 
own,  he  must  fully  state  and  describe  in  what  capacity  he  sues, 
and  allege  enough  in  the  bill  so  that  the  court  can  clearly  un- 
derstand how  the  complainant  brings  the  action ;  and  the  allega- 
tions should  be  so  clear  and  explicit  that  if  there  should  be  no 
appearance  on  the  part  of  the  defendant  the  court  could,  from 
the  statement  in  the  bill,  make  a  proper  decree. 

(3)  The  hill  must  hy pi'oper  and  sufficient  allegations  set  out 
the  wrong  and  injury  to  the  complainant,  and  with  sufficient 
clearness  and  enough  of  the  circumstances  so  that  the  court 
and  opposite  party  may  be  fully  apprised  of  the  claim  of  the 
complainant.  Upon  this  statement  of  wrongs  or  injuries  com- 
mitted the  court  must  rely  in  determining  the  complainant's 
equities,  for  if  there  are  not  suiiicient  allegations  of  wrong  or 
injury,  by  reason  of  commissions  or  omissions  upon  the  part  of 
the  defendant,  or  from  threatened  or  impending  danger  result- 
ing- from  defendant's  threatened  commissions  or  omissions 
which  violate  the  rights  of  complainant,  there  is  nothing  for 
the  court  of  equity  to  correct  and  the  bill  upon  demurrer  would 
be  dismissed. 

(4)  The  defendants  claim  of  interest  and  his  liability  for  the 
lorong  or  injury  must,  by  sufficient  allegations,  be  shown  to 
exist.  For  if  the  bill  should  fail  to  show  that  the  defendant 
claimed  an  interest  or  right  in  the  property  or  subject-matter 
of  the  action,  or  should  fail  to  connect  the  defendant  with  the 
wrong  or  injury  in  such  a  manner  as  to  clearly  show  that  he 
is  responsible  for  it  and  its  continuance,  if  the  suit  is  one  to 
restrain  future  wrong,  the  bill  would  be  demurrable,  for  there 
would  be  no  wrong  or  injury  to  complain  of,  and  no  claim  or 
assumed  right  on  account  of  which  complainant  could  ask  for 
relief  if  these  facts  did  not  exist  and  were  not  alleged  in  the  bill.^ 

§  34.  Form  and  manner  of  statement. —  There  is  no  partic- 
ular form  of  statement  for  setting  out  the  facts  in  the  bill;  the 
complainant  comes  into  the  court  seeking  equitable  relief  and 
must  comply  with  all  the  requirements  of  equity  at  every  step 

Allegations  —  Injury  io  complain-  Jones  v.  Myers,  7  Black f.  (In A) 
ant:    Williams  v.  Hagood,  98  U.  S.     340. 

72;  V7illingham  v.  King,  23  Fla.  478;        i  Emerson  v.  Township  of  Walker, 

63  Mich.  483. 


32  BILL   IN    EQUITY.  [§  35. 

of  the  case.  It  must  appear  from  the  stating  part  of  the  bill 
that  he  is  following  that  maxim  of  equity,  "  he  who  seeks 
equity  must  do  equity,"  and  that  other  maxim,  "  he  who  comes 
into  equity  must  come  with  clean  hands."  Every  duty  that  is 
incumbent  upon  the  complainant  to  perform,  every  condition 
precedent  that  is  lawful  and  just,  must  appear  by  allegations 
in  the  bill  to  have  been  fully  performed,  or  an  offer  to  so  per- 
form. The  facts  must  be  stated  positively  and  upon  the  com- 
plainant's own  knowledge,  if  he  has  such  knowledge  and  can 
so  state,  or  if  it  appears  from  the  case  made  by  the  bill  that  he 
ought  to  have  such  knowledge;  if  he  has  no  knowledge,  but 
has  information  as  to  the  truth  of  the  facts  relied  upon,  and 
believes  the  information  to  be  true  and  reliable,  he  may  make 
the  allegations  upon  information  and  belief;  not  on  informa- 
tion alone,  for  it  is  required  that  he  shall  at  least  indorse  the 
statement  as  believed  by  him  to  be  true.  Should  the  bill  rest 
its  material  allegations  upon  information  and  belief,  it  will  be 
required  in  some  cases,  as  we  shall  see,  that  the  complainant 
support  the  facts  in  the  bill  by  the  affidavits  of  persons  who 
know  the  statements,  or  some  of  the  very  material  statements, 
at  least. 

§  35.  Setting  up  deeds,  mortgages,  contracts,  records, 
etc. —  The  title  of  the  complainant  to  the  subject-matter  of 
the  controversy,  and  the  claim  of  the  defendant,  is  often  evi- 
denced by  deeds,  mortgages,  contracts  or  records.  In  such  case 
the  complainant  in  alleging  the  claim  of  the  parties  in  the 
stating  part  of  the  bill  must  set  out  the  deeds  or  other  docu- 
ments upon  which  it  is  based.  It  is  not  necessary  in  alleging 
title  or  rights  under  deeds,  mortgages,  or  instruments  which 
are  of  record,  to  set  them  out  in  the  bill  in  hcac  verba,  nor 
would  that  be  considered  good  pleading.  The  complainant 
should  describe  the  conveyance,  or  the  instrument,  or  the 
record  thereof,  in  sufficient  terms  to  fully  identify  it,  stating 
clearly  the  claims  of  the  parties  that  rest  upon  it,  and  make 
reference  to  the  record  of  the  instrument  by  liber  and  page  so 
that  it  can  be  readily  referred  to.  Formerly  it  was  the  practice 
to  follow  these  statements  of  description  and  reference  by  a 
recital  somewhat  in  the  nature  of  making  profert  of  the  in- 
strument —  for  example,  if  it  were  a  deed  of  conveyance,  by 
statement  as  follows:  "  To  which  said  deeds  of  conveyance  for 


§  36.]  BILL    IN    EQUITY.  33 

greater  certainty  your  orator  prays  leave  to  refer."  Or,  "  which 
said  deeds  of  conveyance  the  said  complainant  will  produce  and 
prove  as  this  honorable  court  may  direct."  But  it  is  not 
necessary  to  use  this  formal  statement. 

If  the  paper  or  instrument  is  a  note  or  bill  of  exchange,  or  a 
contract  or  some  instrument  not  of  record,  it  may  in  some 
instances,  as  in  case  of  a  note  or  bill  of  exchange  or  a  receipt, 
be  the  better  practice,  for  the  sake  of  certainty,  to  set  the 
instrument  out  in  hcec  verba.  The  end  to  be  attained  is 
certainty,  and  a  full,  fair,  statement  of  material  facts;  and  the 
pleader  may  exercise  his  own  judgment  as  to  how  this  shall 
be  attained.  If  the  instrument  is  a  contract  executed  by  the 
parties,  or  a  contract  of  other  parties  from  which  the  claim  of 
one  or  both  parties  to  the  suit  is  derived,  it  is  usually  sufficient 
to  state  the  substance  of  the  same  in  the  bill;  or  it  may  be  set 
out  in  full  by  making  a  copy  of  it  and  attaching  it  to  the  bill 
as  an  exhibit  and  making  reference  to  it  as  such  in  the  stat- 
ing part.  When  the  suit  is  brought  to  set  aside  such  an  in- 
strument—  a  contract  or  a  chattel  mortgage,  for  example, — 
and  there  is  involved  the  construction  of  the  instrument  as  well 
as  the  fact  as  to  how  it  was  obtained,  and  it  is  desired  to 
elicit  an  answer  from  the  defendant  that  it  is  a  correct  copy, 
and  thus  have  it  before  the  court  as  proven,  it  is  well  to  attach 
a  copy  as  an  exhibit  with  the  proper  reference,  making  it  a 
part  of  the  bill.  If  the  contractor  instrument  upon  which  the 
suit  is  based  is  ambiguous,  it  is  proper  for  the  pleader  to  set 
out  the  instrument  in  full  by  making  a  copy  thereof  and 
attaching  it  to  the  bill  as  an  exhibit,  making  reference  to  the 
same  in  the  stating  part  of  the  bill,  and  also  to  state  in  the  bill 
his  construction  of  the  contract.  As  a  general  rule  exhibits 
attached  to  a  pleading  are  not  to  be  considered  as  substantive 
allegations  of  fact,  unless  the  pleading  is  so  framed  as  to  show 
such  an  intention  on  the  part  of  the  pleader.^  Eut  there  is  no 
inflexible  rule  as  to  the  manner  or  form  of  statement  of  facts 
in  the  drafting  of  the  bill. 

§  36.  When  must  tender  of  performance  be  made  in  tbe 
bill. —  There  are  certain  equitable  cases,  which  will  be  dis- 
cussed in  later  chapters,  where  the  equitable  relief  sought  rests 

1  Union  Sewer  Pipe  Co.  v.  Olson,  84  Minn.  187,  84  N.  W.  756;  Einstein  v. 
Schnebly,  89  Fed.  540. 
3 


34  BILL   IN    EQUITY.  [§  37. 

almost  entirely  upon  the  performance  of  certain  agreement* 
or  covenants  of  the  complainant  as  conditions  precedent  to  a 
performance  on  the  part  of  the  defendant.  And  where  from 
the  statement  of  the  facts  in  the  bill  it  appears  that  there  is 
something  to  be  done  upon  the  part  of  the  complainant  before 
he  can  have  the  decree  prayed  for,  as,  for  example,  the  pay- 
ment of  money,  or  the  returning  to  the  defendant  of  certain 
property,  or  some  other  act,  in  all  such  cases  it  is  better  that  the 
bill  should  show  that  the  complainant  has,  so  far  as  he  is  able, 
performed  his  whole  duty  in  the  premises;  that  he  has  full}'-  kept 
his  contract  and  in  good  faith  done  all  that  is  incumbent  upon 
him  to  do  before  the  commencement  of  the  suit;  or  that  he  has 
endeavored  to  do  so  and  has  been  prevented  by  the  defendant; 
that  he  has  tendered  payment  of  the  money,  which  has  been  re- 
fused ;  that  he  has  tendered  performance  of  the  agreement  or 
covenant  and  the  defendant  would  not  accept.  These  allegations 
should  also  be  followed  by  a  tender  of  performance  in  the  bill  by 
offering  to  perform  at  any  time  the  conditions  precedent  as  the 
court  may  direct.  Tender  of  performance  in  the  bill  is  gener- 
ally sufficient,  but  as  to  this  the  authorities  are  not  entirely 
agreed.^  The  necessity  of  these  averments  will  more  fully  appear 
in  the  discussion  of  the  more  particular  cases  where  it  is  required. 
§  37.  Allegations  as  to  adversary's  claims. —  It  is  only  nec- 
essary to  state  in  the  bill  the  claims  or  rights  of  the  defend- 
ant by  way  of  illustrating  or  making  more  plain  the  statement 
of  the  case  of  the  complainant,  or  to  show  the  claim  of  the  de- 
fendant to  the  subject-matter  of  the  suit,  that  the  court  mav 
see  the  necessity  of  making  him  a  party  to  the  action.  Such 
statements  are  not  required  to  be  set  forth  with  that  degree  of 
certainty  that  is  necessary  in  stating  other  material  facts,  be- 
cause the  defendant  knows  fully  and  particularly  all  of  these 
facts  and  need  not  rely  upon  the  complainant  to  apprise  him 
of  them.  The  same  rule  applies  in  equity  pleading  in  this  re- 
spect as  obtains  in  common-law  pleading.     The  equity  bill  is 

1  Complainant    should  allege  per-  322;  De  Ford  v.  Hyde,  10  S.  Dak.  386, 

/ormance,  or  offer  to  perform,  or  ex-  73  N.    W.   265.     Allege  offer  to  do 

cuse  non  performance,     Chadbourne  equity.     Sheets  v.   Seiden,  74  U.  & 

V.  Stockton,  etc.  Soc,  88Cal.  6o6-6:;9;  416  (7  Wall.);  Martin  v,  Tenison,  26 

D'VVolf  V.  Piatt,  43  111.  198;  Palmer  Ala.  738;  Oliver  v.  Palmer,  11  GUI  & 

V.   Palmer.  114  Mich.   .509,   72  N.  W.  J.  (Md.)  426. 


ft  38,]  BILL   IN    EQUITY.  35 

used  as  well  for  discovery  as  for-stating  the  complainant's  case 
and  obtaining  a  decree  for  the  relief  sought,  and  while  discov- 
ery may  not  be  the  object  of  the  bill,  it  is  important,  for  by  it 
the  complainant  is  better  enabled  to  make  out  his  case,  as  the 
admissions  of  the  defendant  in  his  answer  stands  as  proven  at 
the  hearing.     The  object  of  the  bill  may  be  for  discovery. 

§  38.  Allegations  of  fraud.— Fraud  cannot  be  properly  al- 
leged by  mere  statement  of  conclusions;  for  example,  to  allege 
in  the  bill  of  complaint  that  the  defendant  procured  the  prop- 
erty, or  the  subject-matter  of  the  suit,  by  fraud  and  misrepre- 
sentation is  simply  stating  a  conclusion  and  is  not  a  sufficient 
allegation,  for  no  proof  could  be  given  upon  such  a  statement. 
There  must  be  a  distinct  averment  of  the  facts  and  circum- 
stances constituting  the  fraud.  That  is  to  say,  the  facts  which 
support  such  a  conclusion  must  be  alleged  and  so  fully  set  forth 
that  the  court,  if  there  was  no  appearance,  could,  from  the  alle- 
gations and  the  proof  supporting  them,  find  that  a  fraud  had 
been  committed.  The  defendant  who  is  charged  with  fraud 
is  also  entitled  to  have  all  the  facts  and  circumstances  upon 
which  the  complainant  bases  his  conclusion  set  forth  in  the 
bill  of  complaint  that  he  may  answer  and  explain  these  facts, 
if  he  can,  and  thus  defend  the  charge.^ 

iToles  V.   Johnson,   72    III.    App.  gence."    Wessell  v.  Sharp, — Tenn. 

182-85.     "The  bill  contains  no  all e-  (1897),  39  S.  W. 543;  Story,  Eq.  PI., 

gationsoffact  which  constitute  such  sec.  251a.  Complainant  must  state 
fraud.  .  .  .  There  IS  absence  of  the  facts  constituting  the  fraud  with 
any  allegation  of  acts  or  facts  to  sup-  sufficient  distinctness  to  enable  the 
port  such  conclusion."  Roth  v.  Roth,  defendant  to  prepare  to  meet  them. 
104  111.  46;  East  St  Louis,  etc.  Ry.  Fox  v.  Hale,  eta  Mining  Co.,  120  CaL 
Ca  V.  People,  119  111.  182;  Hubbard  261,  53  Pac.  32;  Anderson  Transfer 
V.  Manhattan  Trust  Co.,  87  Fed.  51.  Co.  v.  Fuller,  73  111.  App.  48.  In 
"  In  a  bill  to  obtain  relief  from  an  pleading  fraud  the  act  must  be  spe- 
alleged,  but  concealed  and  recently  cifically  alleged.  Ohio  Cultivator 
discovered  fraud,  it  was  always  held  Co.  v.  People's  Nat.  Bank,  22  Tex. 
that  there  must  be  distinct  avei-  Civ.  App.  643,  55  S.  W.  765;  Weekes 
ments  as  to  the  time  of  the  discov-  v.  Sunset,  etc.  Co.,  22  Tex.  Civ.  App. 
ery  of  the  fraud,  how  the  knowledge  556,  56  S.  W.  243.  When  conclusions 
was  obtained,  why  it  was  not  ob-  are  stated  and  not  facts,  bad  on  de- 
tained earlier,  and  as  to  the  diligence  murrer.  Wooisey  v.  Sunderland,  62 
previously  used  in  the  investigation  N.  Y.  S.  104;  Blood  v.  Manchester 
of  the  fraudulent  transaction,  so  that  Electric  Lt.  Co..  68  N.  H.  340,  39  AtL 
a  court  could  discover  from  the  335;  Gernt  v.  Cusack,  106  Tenn.  141, 
bill  itself  whether  the  complainant  59S.  W.  3:^5.  The  specific  fraud  murt 
had  not  lost  his  rights  by  his  negli-  be  pointed  out     Voorhees  v.  Bone- 


36  BILL   IN    EQUITY.  [§  39. 

§39.  The  bill  mnst  not  he  multifarions.— Multifarious- 
ness is  defined  by  Story  to  be  "the  improperly  joining  in  one 
bill  distinct  and  independent  matters,  and  thereby  confound- 
ing them ;  as,  for  example,  the  uniting  in  one  bill  of  several 
matters  perfectly  distinct  and  unconnected  against  one  defend- 
ant; or  the  demand  of  several  matters  of  a  distinct  and  inde- 
pendent nature  against  several  defendants  in  the  same  bill.  In 
the  latter  case  the  proceeding  would  be  oppressive,  because  it 
would  tend  to  load  each  defendant  with  an  unnecessary  bur- 
den of  costs,  by  swelling  the  pleadings  with  the  statement  of 
the  several  claims  of  the  other  defendants  with  which  he  has 
no  connection.  In  the  former  case,  the  defendant  would  be 
compelled  to  unite,  in  his  answer  and  defense,  different  mat- 
ters, wholly  unconnected  with  each  other;  and  thus  the  proofs 
applicable  to  each  would  be  apt  to  be  be  confounded  with  each 
other,  and  great  delays  would  be  occasioned  by  waiting  for 
the  proofs  respecting  one  of  the  matters,  when  the  others  might 
be  fully  ripe  for  hearing."^  A  bill  is  said  to  be  multifarious 
if  it  contains  two  or  more  different  and  distinct  objects;  as,  for 
example,  if  a  bill  should  be  filed  against  several  defendants 
seeking  redress  for  injuries  arising  out  of  transactions  with 
them  separately  and  not  jointly,  at  different  times  and  relat- 
ing to  different  subjects,  such  a  bill  would  be  held  bad  on  de- 
murrer for  multifariousness.  If,  however,  the  object  of  the  bill 
be  single,  and  for  the  obtaining  relief  for  one  claim,  though 
against  several  defendants,  in  such  a  case  the  bill  would  not 
be  subject  to  this  criticism.  The  joining  of  two  causes  of 
complaint  growing  out  of  the  same  transaction,  if  all  the  de- 
fendants are  interested  in  the  same  claim  of  right,  and  the 
relief  prayed  for  as  to  each  claim  is  of  the  same  general  char- 
acter, would  not  be  multifarious.  The  bill  may  contain  several 
subjects,  but  it  can  contain  but  one  object. 

Where  the  defendant,  a  bank,  was  in  possession  of  several 
negotiable  promissory  notes  of  a  large  amount  which  were  the 
property  of  an  insolvent  national  bank,  and  the  complainant, 
who  was  appointed  receiver  of  the  insolvent  bank  by  thecomp- 

steel,  83  U.  S.  (16  Wall.)  16;  Merrill    Castle  v.  Bader,  23  Cal.  76;  State  v. 


V.  Washburn,  83  Me.  189,  22  AtL  118 
Small  V.  Boudinot,  9  N.  J.  Eq.  381 
Lafayette  Ca  v.  Neely,  21  Fed.  738 


Williams,  39  Kan.  517,  18  Pac.  727; 
Martin  v.  Lutkewitte,  50  Ma  58. 
1  Story,  Eq.  PI.,  sec  271. 


§  39.]  BILL    m   EQUITY.  37 

troller  of  the  currency  of  the  United  States,  filed  a  bill  to  ob- 
tain possession  of  the  notes  and  settle  the  rights  of  the  several 
creditors  of  the  bank  who  had  by  executions  upon  judgments 
obtained,  and  by  writs  of  garnishment,  undertaken  to  obtain 
liens  upon  the  property,  the  bill  was  held  upon  demurrer  not 
to  be  bad  for  multifariousness.  The  court  say:  "Although 
several  judgment  creditors  assert  separate  claims,  based  upon 
distinct  judgments  and  proceedings,  and  they  are  acting  inde- 
pendently of  each  other,  still  the  controversy  in  the  present 
suit  is  single.  It  relates  to  property  which  the  plaintiff  seeks 
to  recover  possession  of.  Each  of  said  defendants  claims  to 
have  a  lien  upon  all  and  every  part  of  said  property.  The  ob- 
ject of  the  suit  is  to  determine  whether  the  plaintiff  is  entitled 
to  have  possession  as  he  claims,  and  to  determine  what,  if  any, 
interest  the  defendants,  or  either  of  them,  have  in  said  prop- 
erty. It  is  not  a  suit  to  impeach  the  judgments  rendered  by 
the  state  court  against  the  insolvent  bank,  nor  to  interfere  with 
the  execution  of  the  process  issued  upon  said  judgments;  there- 
fore the  defendants  are  all  proper  parties  and  the  bill  is  not 
multifarious."  ^  But  where  several  distinct  subjects  having  no 
connection  with  each  other  and  requiring  different  decrees  are 
included  in  one  bill  it  is  multifarious.  "  If  the  matter  in  liti- 
gation is  entire  in  itself  and  does  not  consist  of  separate  things 
having  no  connection  with  one  another,  it  is  not  necessary  that 
each  defendant  should  have  an  interest  in  the  suit  co-extensive 
with  the  claim  set  up  by  the  bill;  he  may  have  an  interect  in  a 
part  of  the  matter  in  litigation  instead  of  the  whole."  ^     It  may 

1  Chase  v.  Cannon  et  al.,  47  Fed.  of  complaint  are  dissimilar  in  their 

674     Where  the   bill   attempted  to  nature,  and  would  require  different 

bring  into  question  and  have  adjudi-  decrees,  it  would  embarrass,  rather 

cated  distinct  and  discordant  inter-  than  expedite,  the  administration  of 

ests  it  was  held  bad  for  multifarious-  justice,  to  allow  them  to  be  united 

ness.     Taylor  v.  King,  32  Mich.  42;  in  the  same  bill.     It  is  not  for  the 

Van  Hise  v.  Van  Hise,  61  N.  J.  Cli.  interest  of    parties   in   equity,   any 

37,  47  Atl.  803.  more  than  at  law.  to  mix  up  different 

2Ingersoll    v,    Kirby,    Walk.    Ch.  transactions  in  the  suit,  having  no 

(Mich.)  65;  Hart  v.  McKeen,  Walk,  affinity  to  each  other." 
Ch.  419.     "Different  causes  of  com-        In  Johnson  v.  Brown,  3  Humph, 

plaint,  of  the  same  nature,  and  be-  (Tenn.)    328,   the    court    say:     "Mr. 

tween    the    same    parties,    may    be  Justice  Story  has  justly  remarked 

united  in  one  suit,  where  the  same  that  numerous  as  are  the  cases  upon 

relief  is  asked;  but  where  the  causes  this  subject,  no  principle  can  be  ex- 


38 


BILL    IV    EQUITT. 


[§40. 


be  said  to  be  a  general  rule,  and  perhaps  a  sufficient  test,  that 
if  all  of  the  matters  and  causes  of  action  alleged  in  the  bill  of 
complaint  can  be  covered  and  completely  settled  by  one  decree, 
the  bill  is  not  multifarious,  for  in  such  a  case  it  would  have  but 
one  object,  which  is  satisfied  by  a  decree. 

§  40.  Bill  may  be  framed  with  double  aspect.—  A  bill  may 
be  framed  with  a  double  aspect  and  not  be  held  bad  for  multi- 
fariousness —  that  is  to  say,  it  may  be  in  the  alternative,  so  that 
if  one  ground  fails,  recovery  or  relief  may  be  had  upon  the 
other;  but  a  bill  framed  with  a  double  aspect  must  not  set  up 
different  and  distinct  causes  which  are  inconsistent  with  each 
other;  the  bill  as  a  whole  must  be  consistent  with  itself.^     "A 


tracted  from  them  that  caa  be  safely- 
adhered  to  as  a  general  rule,  but  the 
courts  must  deterraiue  each  case 
upon  its  own  peculiar  circumstances. 
While  multiplicity  of  actions  on  the 
one  hand  ought  to  be  avoided,  we 
should  be  careful,  on  the  other,  to 
guard  against  that  complication  and 
confusion  in  the  investigation  of 
rights,  and  the  application  of  reme- 
dies, arising  from  the  attempt  to 
blend  in  one  suit  distinct  and  in- 
congruous claims  and  liabilities.  The 
interest  and  liability  of  defendants 
may  be  separate,  and  yet  they  can 
be  joined  in  the  same  suit.  But,  then, 
their  liability  must  flow  from  the 
same  fountain ;  their  interests  radiate 
from  some  common  centre;  as  if  they 
have  distinct  portions  of  complain- 
ant's distributive  share,  or  have  pur- 
chased severally  and  each  for  himself 
from  complainant's  testator  separate 
portions  of  his  trust  property,  and  in 
such  like  cases." 

A  bill  is  not  multifarious  for  the 
reason  that  several  causes  of  action 
are  stated  if  they  all  grow  out  of  the 
same  transaction.  Barcus  v.  Gates, 
3i3  C.  C.  A.  337,  89  Fed.  783;  Bliss  v. 
Parks,  175  Mass.  539.  56  N.  K  566; 
Farrar  v.  Powell,  71  Vt.  247,  44  Atl. 
344;  Dillard  v.  Dillard,  97  Va.  434,  34 
a  E.  60;  Aylesworth  v.  Crocker,  21 
R.  L  436;  EJaerle  v.  Heaton,  124  Mich. 


205,  82  N.  W.  820;  United  States  Min- 
eral Wool  Co.  V.  Manville,  etc.  Co., 
101  Fed.  145,  and  see  cases  cited; 
Cleland  v.  Casgrain,  92  Mich.  139; 
Torrent  v.  Hamilton.  95  Mich.  159; 
Cornwell  Mfg.  Co.  v.  Swift,  89  Mich. 
503. 

J  Hart  v.  McKeen,  Walk.  Ch.  (Mich.) 
417.  A  party  may  frame  his  bill  in  the 
alternative  if  the  title  to  relief  wiil 
be  the  same  in  either  alternative, 
although  the  case  be  presented  upon 
allegations  resting  on  wholly  distinct 
and  independent  grounds.  Brown  v. 
Bedford,  etc.  Co.,  91  Va.  31;  Bradley 
V.  Converse,  Fed.  Cas.  Na  1.775  (4 
Ciiflf.  366);  American  Box  Match  Co. 
V.  Crosman,  57  Fed.  1021. 

A  bill  which  alleges  the  ground  of 
action  in  the  alternative  is  insuffi- 
cient if  by  one  of  the  alternatives  it 
appears  that  the  complainant  is  not 
entitled  to  the  remedy  sought  David 
v.  Shepard,  40  Ala.  587. 

A  bill  stating  a  cause  of  action  in 
the  alternative  is  insufficient  if  one 
of  the  alternatives  shows  he  has  no 
right  to  recover,  as  the  bill  must  be 
construed  most  strongly  against  the 
pleader.  Andrews  v.  McCoy,  8  Ala. 
920,  42  Am.  Dea  669.  May  file  such 
bill.  Avery  v.  Kellogg,  11  Conn.  562; 
Foster  v.  Cook,  8  N.  C.  509;  Appeal 
of  Wilhelm,  79  Pa.  St.  T-'O;  McCon- 
nell  v.  McConnell,  11  Vt  290. 


g  41.1  BILL    IN   EQUITY.  39 

proper  case  for  a  bill  with  a  double  aspect,"  says  Chancellor 
Walworth,^  "is  where  the  complainant  is  in  doubt  whether  he 
is  entitled  to  one  kind  of  relief  or  another  upon  the  facts  of  his 
case  as  stated  in  the  bill.  In  such  a  case  he  may  frame  his 
prayer  in  the  alternative,  so  that,  if  the  court  is  against  him 
as  to  one  kind  of  relief  prayed  for,  he  may  still  be  enabled  to 
obtain  any  other  relief  to  which  he  is  entitled  under  the  other 
part  of  the  alternative  prayer.  So  also  where  complainant  is 
entitled  to  relief  of  some  kind,  upon  the  general  facts  stated  in 
his  bill,  if  the  nature  of  the  relief  to  which  he  is  entitled  de- 
pends upon  the  existence  or  non-existence  of  a  particular  fact, 
or  circumstance,  which  is  not  within  his  knowledge,  but  which 
is  known  to  the  defendant,  he  may  allege  his  ignorance  as  to 
such  fact,  and  call  for  a  discovery  thereof."  And  where  a  bill 
was  filed  praying,  among  other  things,  for  a  certain  construc- 
tion of  a  deed,  and  if  not  so  construed  by  the  court  that  it  be 
decreed  to  have  been  executed  under  a  mutual  mistake  and 
contrary  to  the  real  intention  of  the  parties  and  that  the  same 
may  be  refraraed,  the  court  say:  "I  do  not  think  the  bill  is 
multifarious,  for  parties  have  the  right  to  state  their  case  in  the 
alternative.  Multifariousness  does  not  arise  from  the  presenta- 
tion of  different  views  of  the  same  collocation  of  facts,  but  it 
must  be  two  distinct  collocations  of  distinct  and  different  facts, 
each  collocation  presenting  different  rights,  and  calling  for 
different  relief."  ^ 

§  41.  Scandal  and  impertinence.—  By  scandal  is  meant  any 
matter  that  is  not  becoming  the  dignity  of  the  court  to  hear, 
or  which  unjustly  reflects  upon  the  party."  By  impertinence 
is  meant  that  which  is  not  pertinent  to  the  object  of  the  bill, 
needless  prolixity  and  long  recitals  of  immaterial  facts.  As 
we  have  seen,  concise,  logical  statements  of  facts  are  required 
in  the  stating  part  of  the  bill;  and  while  the  courts  will  per- 
mit a  very  full  and  complete  recital  of  the  facts  and  circum- 

1  Lloyd  V.  Brewster,  4  Paige  (N.  Y.),  found  due  on  the  statement  of  ac- 
537;  Colton  v.  Ross,  2  Paige  (N.  Y.),  count  and  praying  for  a  cancellation 
396.  of  the  mortgage.     Fields  v.  Helms, 

2  Snyder  v.  Grandstaff,  96  Va.  473,  70  Ala.  460. 

476.     A  mortgagor  may  file  a  bill  in  ^Lub^,  Eq.  PL  76;  Story,  Eq.  PL, 

a  double  aspect  averring  full  pay-  sees.  48,  266,  270;  Burr  v.  Burton's 

ment  of  the  mortgage  debt  and  otfer-  Adm'rs,  18  Ark.  214. 
ing  to  pay  any  balance  that  may  be 


40  BILL    IN    EQUITY.  [§41. 

Stances,  if  they  bear  upon  the  qiT^stions  in  issue,  and  will 
perhaps  show  great  leniency  in  this  direction,  superfluous  alle- 
gations, redundant  and  unnecessary  statements  which  are  en- 
tirely irrelevant  and  immaterial  to  the  issue,  and  which  could 
not  be  the  subject  of  proof  at  the  hearing,  will  not  be  tolerated, 
and  on  motion  will  be  stricken  from  the  proceedings  as  imper- 
tinent, with  costs.  Story,  in  his  Equity  Pleading,  says:  "One 
of  the  ordinances  of  the  court  of  chancery,  constituting  a  fun- 
damental rule  of  the  court,  is  aimed  against  this  transgression 
of  the  good  sense,  as  well  as  the  good  taste,  of  equity  plead- 
ino-s.  It  declares,  'That  counsel  are  to  take  care  that  the 
same  (bills,  answers  and  other  pleadings)  be  not  stuffed  with 
repetitions  of  deeds,  writings  or  records,  in  hcBo  verba;  but  that 
the  effect  and  substance  of  so  much  of  them  only  as  is  perti- 
nent and  material  be  set  down,  and  that  in  brief  terms,  with- 
out long  and  needless  traverses  of  points  not  traversable, 
tautologies,  multiplication  of  words,  or  other  impertinences, 
occasioning  needless  prolixity;  to  the  end,  the  ancient  brevity 
and  succinctness  in  bills  and  other  pleadings  may  be  restored 
and  observed.  Much  less  may  any  counsel  insert  therein  mat- 
ter merely  criminous  or  scandalous,  under  the  penalty  of  good 
costs  to  be  laid  on  such  counsel.' "  ' 

1  Story,  Eq.  PI.,  sec.  266.  In  Hood  present  case  is  not  an  instance  of 
T.  Inman,  4  John.  Ch.  (N.  Y.)  438,  the  gross  abuse  of  this  rule  of  pleading; 
court  say:  "Impertinence  consists  but  I  am  glad  to  see  the  exception 
in  setting  forth  what  is  not  neces-  taken,  and  the  point  brought  up.  for 
sary  to  be  set  forth,  as  where  the  the  opportunity  it  affords  of  laying 
pleadings  are  stuffed  with  long  re-  down  the  rule.  I  have  frequently 
oitals,  or  with  long  digressions  of  perceived  the  pleadings,  and  par- 
matters  of  fact  which  are  totally  ticularly  the  bill,  incumbered  with 
immaterial.  An  answer  or  a  bill  a  recital,  in  hcse  verba,  of  deeds, 
ought  not,  ordinarily,  to  set  forth  mortgages  and  other  documents, 
deeds  in  hcec  verba;  and  if  the  which,  unless  checked,  wiil  lead  to 
pleader  sets  forth  only  so  much  great  oppression  of  the  suitor  and  to 
thereof  as  is  material  to  the  point  the  reproach  of  the  court.  When- 
in  question,  it  is  sufficient.  They  ever  a  proper  case  arises  I  shall  cer- 
are  matter  of  evidence  to  be  shown  tainly  mark  it  with  animadversion, 
at  large  at  the  hearing.  In  Alsager  and  shall  endeavor  to  enforce,  by  all 
V.  Johnson,  4  Ves.  217,  a  bill  of  costs  suitable  means,  precision  and  brev- 
was  given  at  large  in  the  schedule  ity  in  pleading.  The  objection  to 
to  tiie  answer,  when  a  reference  to  unnecessary /oZm  may  be  taken  on 
the  bill  of  costs  delivered  would  the  taxation  of  costs, 
have  fully  answered  the  purpose,  and  "The  ancient  rules  and  orders  of 
it    was    deemed    impertinent.     The  the  English  court  of  chancery  are  very 


4] 


g  4.1  1  BILL   IN    EQUITY. 

The  United  States  courts  meet  this  by  a  rule  of  court:  "Every 
bill  shall  be  expressed  in  as  brief  and  succinct  terms  as  it 
reasonably  can  be,  and  shall  contain  no  unnecessary  recitals 
Gf  deeds,  documents,  contracts,  or  any  other  instruments  in 
km  verba,  or  any  other  impertinent  matter,  or  aoy  scandalous 
matter  not  relevant  to  the  suit;  if  it  does  it  may,  on  exception, 
be  referred  to  a  master  by  any  judge  of  the  court  for  imperti- 
nence or  scandal,  and  if  so  found  by  him,  the  matter  shall  be 

expunged."  ^ 

In  Woods  V.  Morrell  ^  the  court  say :  "  As  to  impertinent  mat- 
ter, the  answer  must  not  go  out  of  the  bill  to  state  that  which 
is  not  material  or  relevant  to  the  case  made  out  by  the  bill. 
Long  recitals,  digressions,  stories,  conversations  and  insinua- 
tions tending  to  scandal  are  of  this  nature.    Facts  not  material 
to  the  decision  are  impertinent,  and  if  reproachful  they  are 
scandalous;  and,  perhaps,  the  best  test  by  which  to  ascertain 
whether  the  matter  be  impertinent  is  to  try  whether  the  sub- 
ject of  the  allegation  could  be  put  in  issue,  and  would  be  mat- 
ter proper  to  be  given  in  evidence  between  the  parties."     And 
where  in  a  pleading  it  was  alleged  that  the  complainant,  over- 
whelmed with  litigation  and   other  matters  which  required 
le-al  services,  and  alarmed  by  the  danger  therefrom  to  his 
ch'aracter  and  estate,  was  unwilling  in  person  to  face  the  courts 
of  his  state,  and  felt  obliged  to  secure  the  services  of  some  one 
to  whom  he  might  intrust  the  management  of  his  property  and 
affairs,  and  then  went  to  Europe;  and  that  a  certam  person 
had  been,  and  was,  his  attorney  and  trusted  friend,  and  hence 
he  was  appealed  to  in  the  emergency  to  assume  the  burden  of 
that  management,  involving  as  it  did  both  business  and  legal 
services;  and  that  the  person  so  employed  was  conscious  of  the 

explicit  and  powerfully  monitory  on  effect  and  substance  of  so  much  of 
this  subject    If  any  pleading  should  them  only  as  was  pertment  and  ma- 
be  found  of  an  immoderate  length,  terial  to  be  set  down,  and  that  in 
Lord  Bacon  declared  that  both  tiie  brief  and  effectual  terms,  etc.,  and 
partv  and  the  counsel  under  whose  upon  any  default  therem,  the  party 
hand  it  passed  should  be  fined.    And  and   counsel   under  whose   hand  it 
Lord  Keeper  Coventry,  with  the  ad-  passed  should  pay  the  charge  of  the 
vice  of  Sir  Julius  Csesar.  the  master  copy,  and  be  further  punished  as  the 
of  the  rolls,  in  1635,  ordained  that  case  should  merit.' " 
bills,  answers,  etc.,  'should  not   be  ^U.S.  Eq.  Rule  26. 
stuffed  with  the  repetitions  of  deeds  » 1  Johns.  Ch.  (N.  Y.)  105. 
or  writings  in  hcec  verba,   but  the 


^2  BILL   IN    EQUITY.  [§  42. 

dangers,  and  actuated  by  apprehension  of  them,  and  by  his 
sympathy  for  his  friend,  he  bestowed  such  incessant  labor,  and 
was  subjected  to  such  worry  and  anxiety  in  the  successful  per- 
formance of  the  duties  required,  tiiat  he  broke  down  in  body 
and  mind,  it  was  held  that  such  allegations  were  both  scanda- 
lous and  impertinent.^ 

But  it  is  not  every  charge  in  the  bill  of  complaint  which  is 
clothed  with  language  that  is  personal  and  offensive,  and  which 
charges  fraud  and  unfair  dealing  by  the  parties  against  whom 
it  is  filed,  that  is  scandalous  or  impertinent,  for  such  facts  are 
often  the  foundation  of  the  remedy  which  the  complainant 
seeks  by  his  bill  in  equity;  and  whenever  such  facts  may 
be  the  subject  of  proof,  and  are  pertinent  to  the  object  of 
the  suit,  they  may  be  properly  alleged,  and  will  not  be  ob- 
jectionable on  the  ground  that  they  are  scandalous.  As  in 
a  bill  to  remove  a  trustee,  it  was  held  not  to  be  scandalous  or 
impertinent  "to  challenge  ever}''  act  of  the  trustee  as  miscon- 
duct, nor  to  impute  to  him  corrupt  or  improper  motives  in  the 
execution  of  his  trust;  nor  to  allege  that  his  conduct  is  the 
vindictive  consequence  of  some  act  on  the  part  of  the  cestui 
que  trusty  or  of  some  change  in  his  situation.  But  it  is  imper- 
tinent and  may  be  scandalous  to  state  any  circumstances  as 
evidence  of  general  malice  or  personal  hostility ;  because  the 
fact  of  malice  or  hostility,  if  established,  affords  no  necessary 
or  legal  inference  that  the  conduct  of  the  trustee  results  from 
such  motives,  and  because  such  a  course  tends  to  render  a  bill 
in  equity  an  instrument  of  inquisition  into  the  private  life  of 
every  trustee."^ 

§  42.  (4)  The  confederating  part. —  The  confederating  part 
of  the  bill  is  wholly  unnecessary.  It  seems  to  have  had  its 
origin  in  the  idea  that  it  was  necessary  to  insert  this  clause  in 
order  to  give  the  complainant  the  privilege  of  inserting  the 
names  of  necessary  parties  who  might  be  discovered  after  the 
suit  was  commenced.  The  usual  language  employed  is  as  fol- 
lows: "The  defendants  combining  and  confederatmg  together 
and  with  divers  other  persons,  as  yet  to  your  orator  unknown, 
but  whose  names  when  discovered  he  prays  may  be  inserted 

1  Hutchinson  v.  Van  Voorhis,  54  N.  J.  Eq.  439.  35  AtL  371. 

21  Barb.  Ch.  Piac.  41;  Earl  of  Portsmouth  v.  Fellows,  5  Mad.  27a 


§  43.]  BILL   IK   EQUITY.  43 

in  the  bill  and  they  be  made  parties  defendant  thereto,  with 
proper  and  apt  words  to  charge  them  in  the  premises,  in  order 
to  injure  and  oppress  your  orator,  do  absolutely  refuse,  etc., 
etc.,  or  pretend,  etc."  ^  In  some  of  the  states  this  part  of  the 
bill  is  by  statute  required  to  be  omitted;  in  others  it  is  de- 
clared to  be  surplusage.  In  the  United  States  court  by  rule 
it  may  be  omitted  at  the  option  of  the  pleader.* 

§43.  (5)  The  charging  part. —  The  charging  part  of  the 
bill  is  not  essential.  It  serves  no  purpose  in  the  modern  chan- 
cery bill;  the  case  must  be  fully  stated  in  the  stating  part,  and 
if  it  is  not,  the  allegations  of  the  charging  part  will  not  save 
the  bill  from  being  demurrable.  This  part  of  the  bill  is  said 
to  have  originated  in  the  idea  that  it  would  save  a  special 
replication  to  the  defendant's  answer  when  pleadings  of  that 
sort  were  used.  Formerly,  when  new  matter  was  introduced 
by  the  defendant  in  his  plea  or  answer  and  the  plaintiff  desired 
to  put  it  in  issue,  he  replied  to  this  new  matter  by  a  special 
replication.  To  avoid  this  special  replication  and  the  unneces- 
sary delay  and  length  of  pleading  arising  from  such  a  proced- 
ure, the  practice  grew  up  of  inserting  in  the  bill  of  complaint 
a  special  allegation  setting  forth  the  pretenses  of  the  defendant 
which  comprised  a  statement  of  this  new  matter  which  might 
be  expected  in  the  plea  or  answer  when  the  complainant  was 
aware  of  the  defense  at  the  time  of  filing  the  bill,  and  then 
proceeding  to  avoid  it,  or  introducing  allegations  by  way  of  a 
defense  to  these  particular  pretenses  of  the  defendant.  The 
complainant  after  setting  up  these  pretenses  would  charge  the 
facts  to  be  otherwise,  or  as  stated  by  way  of  avoidance.  The 
formal  language  of  this  part  is  usually  as  follows:  "That  the 
defendant  sometimes  alleges  and  pretends  (here  stating  the 
supposed  new  matter  upon  which  defendant  relies),  and  at 
other  times  he  alleges  and  pretends  (here  stating  other  claims 
or  pretenses  of  the  defendant);  whereas  your  orator  charges 
the  contrary  thereof  to  be  the  truth,  and  that  (here  stating  the 
special  matter  which  the  complainant  sets  up  in  answer  to  the 
defendant's  claim).* 

1  Story,  Eq.  PL,  sec.  29.  Praa  (4tb  ed.)  372,  the  author  gives 

■''Rule  21,  U.  S.  Eq.  Rules.  a  concise  history  of  this  part  of  the 

3  Lube,  Eq.  PI.,  sec.  237;  Story,  Eq.  bill  as  follows:  "It  was  formerly  the 

PI.,  sees.  31-33.     In  1  Dan.  Ch.  PL  &  practice   of   pleaders    in    equity   to 


44  BILL   IN    EQUITY.  [§§  44,  45. 

§  44.  (6)  The  jurisdictional  clause.— In  this  part  ot  the 
bill  the  allegation  is  made  that  the  complainant  has  no 
adequate  or  complete  remedy  at  law  and  can  only  have  the 
relief  prayed  in  a  court  of  equity.  The  clause  in  part  is  as 
follows:  "In  consideration  whereof,  and  inasmuch  as  your 
orator  is  entirely  remediless  in  the  premises  according  to  the 
strict  rules  of  the  common  law,  and  can  only  have  relief  in  a 
court  of  equity  where  matters  of  this  nature  are  properly  cog- 
nizable and  relievable.  To  the  end,  therefore,"  etc.  This  clause 
is  wholly  unnecessary,  as  such  an  allegation  is  meaningless, 
and  does  not  in  the  slightest  even  tend  to  confer  jurisdiction. 
The  jurisdiction  of  the  court  must  depend  upon  the  facts  al- 
leged in  the  stating  part  of  the  bill;  if  these  facts  fail  to  make 
out  a  case  of  which  the  court  of  equity  will  assume  jurisdic- 
tion, no  matter  how  strongly  it  is  charged  in  the  jurisdictional 
clause,  a  demurrer  to  the  bill  for  want  of  equity  will  be  sus- 
tained.^ The  use  of  this  clause  is  made  optional  in  the  United 
States  court  by  rule,^  while  in  many  of  the  states  it  is  dis- 
allowed by  statute,  or  declared  unnecessary  by  rule. 

§  45.  (7)  The  interrogating  part.— In  this  part  of  the  bill 
the  complainant  prays  for  an  answer  to  the  bill  from  the  de- 
state  the  plaintiff's  case  in  the  bill  the  charging  part  of  the  bill,  and  its 
very  concisely,  and  then  if  any  mat-  introduction  into  practice,  in  all 
ter  was  introduced  into  the  defend-  probability,  led  to  the  discontinu- 
ant's  plea  or  answer  which  made  it  ance  of  special  replications,  by  en- 
necessary  for  the  plaintiff  to  put  in  abling  the  plaintiff  to  state  his  ca.se, 
issue,  on  his  part,  some  additional  and  to  bring  forward  the  matter  to  be 
fact  in  avoidance  of  such  new  mat-  alleged  in  reply  to  the  defense  at  the 
ter.  such  new  fact  was  placed  upon  same  time,  and  that  without  making 
the  record  by  means  of  a  special  any  admission,  on  the  part  of  the 
replication.  In  order  to  avoid  the  plaintiff,  of  the  truth  of  the  defend- 
inconvenience,  delay  and  unueces-  ant'scase.  Thus,  if  a  bill  were  filed  on 
sary  length  of  pleadmg  arising  from  any  equitab'e  ground,  by  an  heir  who 
this  course  of  proceeding,  the  prao-  apprehended  his  ancestor  had  made 
tice  grew  up.  when  the  plaintiff  was  a  will,  he  might  state  his  title  as 
aware  at  the  time  of  filing  his  bill  of  heir,  and  alleging  the  will  by  way  of 
any  defense  which  might  be  made  pretense  on  the  part  of  the  defend- 
to  it.  and  had  any  matter  to  allege  ants  claiming  under  it,  make  it  a 
which  might  avoid  the  effect  of  such  part  of  his  case  without  admit- 
defense,  to  insert  an  allegation  that     ting  it." 

the   defendants  pretend,   or  set  up        i  Story,  Eq.  PL,  sec.  34;  Marshall  v. 
such  and  such  allegations  by  way  of    Rench,  d  Del.  Ch.  239. 
defense,  and  then  to  aver  the  matter        '^  U.  S.  Rule  21;  Gage  v.  Kaufman, 
used   to  avoid   it    in   the    form    of    133  U.  S.  471. 
charge.     This  was  commonly  called 


O  4(5  -]  BILL    IN    EQUITY.  45 

fendant  that  he  may  upon  oath  full,  true,  direct  and  perfect 
answer  make  to  all  and  singular  the  matters  alleged,  and  in 
this  part  the  complainant  may,  and  often  does,  waive  an  an- 
swer under  oath.     If  the  answer  under  oath  is  waived  by  the 
complainant,  then  the  answer  stands  at  the  hearing  as  a  mere 
pleading;  but  if  it  is  required  to  be  made  under  oath,  it  would 
have  the  force  and  importance  of  a  deposition  as  to  the  facts 
it  contained.     In  this  part  of  the  bill  the  complainant  may 
put  special  interrogatories  to  the  defendant  as  to  the  matters 
contained  in  the  stating  part  of  the  bill  for  the  purpose  of  ob- 
taining and  using  his  answers  upon  the  hearing  of  the  cause. 
The  theory  upon  which  this  part  of  the  bill  is  based  is,  that 
by  it  the  complainant  can  elicit  valuable  admissions  of  facts 
that  will  be  of  great  assistance  upon  the  hearing;  by  it  he 
seeks  to  discover  the  claims  of  defendant  touching  the  same 
matter.    But  it  is  difficult  to  discover  any  advantage  that  may 
be  gained  by  the  use  of  this  part  of  the  bill.     Without  this 
clause  the  defendant  is  required  to  make  a  full  and  complete 
answer  to  every  material  allegation  of  the  complainant  in  the 
stating  part  of  his  bill.     There  is  no  way  by  which  he  can 
evade  the  making  of  such  an  answer,  and  it  will  and  ought  to 
be  required  to  be  as  particular  and  complete  as  though  special 
questions  or  interrogatories,  which  are  but  mere  repetitions  of 
the  stating  part,  were  inserted  in  this  part  of  the  bill.     It 
should  be  borne  in  mind  that  the  interrogatories  must  be  sup- 
ported by  the  stating  part,  and  it  cannot  limit  or  enlarge  the 
facts  there  contained.^ 

§  46.  (8)  Prayer  for  relief.— Prayers  for  relief  are  of  two 
kinds:  (1)  general,  and  (2)  special.  In  the  United  States  courts 
it  is  provided  by  rule  that  "  the  prayer  of  the  bill  shall  ask  the 
special  relief  to  which  the  plaintiff  supposes  himself  entitled, 
and  also  shall  contain  a  prayer  for  general  relief."  =^  And  if 
the  prayer  for  general  relief  should  be  omitted,  it  has  been 
held  that  it  may  be  added  by  amendment.^  The  general 
prayer  for  relief  is  usually  as  follows :  "  And  that  your  orator 
may  have  such  further  and  such  other  relief  in  the  premises  as 
the  nature  of  the  case  shall  require,  and  as  to  the  court  shall 

1  Fuller  V.   Knapp,    24    Fed.   100;        2  u.  a  Eq.  Rule  2L 
Woodcock  V.  Bennet,  1  Cow.  (N.  Y.)        »  Adams  v.  Kehlor  Milling  Co.,  36 
711;  Story,  Eq.  PL,  sec.  36.  Fed.  212. 


4t)  BILL    IN    EQUITY.  [§  46, 

seem  meet,"  Or,  "  that  your  orator  may  be  further  and  other- 
wise relieved  in  the  premises  according  to  equity  and  good 
conscience."  ^  The  special  relief  prayed  for  depends  upon  the 
statement  of  facts  in  the  bill,  for  to  this  the  court  will  look  in 
determining  whether  the  special  prayer  can  be  supported,  for 
the  complainant  cannot  obtain  relief  inconsistent  with  the  case 
made  in  the  bill.  Where  the  special  prayer  was  in  the  alter- 
native, the  pleader  being  in  doubt  as  to  whether  he  was  entitled 
to  one  kind  of  relief  or  another  upon  the  facts  as  alleged  in  the 
bill,  it  was  held  that  such  a  prayer  would  be  proper  and  not 
inconsistent  with  the  stating  part  of  the  bill.^  Where  alter- 
native relief  is  prayed  for  it  must  be  clearly  stated,  and  each 
be  of  such  a  nature  that  they  can  be  supported  by  the  facts  in 
the  bill  of  complaint.^  The  general  rule  governing  the  prayer 
of  ihe  bill  is  that  the  complainant  may  pray  for  such  special 
relief  as  the  equities  set  forth  in  the  stating  part  of  the  bill  will 
warrant;  but  if  the  prayer  be  of  such  a  nature  that  it  is  clearly 
unsupported  by  the  statement  of  facts  in  the  bill  and  there  be 
no  general  prayer  for  relief,  the  bill  will  be  subject  to  demurrer; 
the  case  would  stand  as  though  no  relief  had  been  asked  for, 
and  the  statement  would  stand  for  naught.  Such  a  condition, 
however,  might  be  remedied  by  an  amendment,  for  the  court, 
no  doubt  for  the  ends  of  justice,  would  allow  the  complainant 
to  insert  a  prayer  for  relief.  When,  in  the  special  prayer  for 
relief,  the  complainant  asked  for  several  things,  to  some  of 
which  he  was  entitled  and  to  others  not,  it  was  held  that  on 
this  account  the  bill  was  not  multifarious,  and  that  the  com- 
plainant on  the  hearing  would  be  entitled  to  the  specific  relief 
prayed  for  which  is  consistent  with  the  case  made  in  the  stat- 
ing part  of  the  bill.*  The  prayer  for  general  relief  is  verj'^  im- 
portant in  every  bill  in  equity;  it  is  the  saving  clause  of  the 
bill,  for  when  the  prayer  for  special  relief  is  held  to  be  insuf- 
ficient the  court  will  grant  such  relief  as  the  complainant  is 

1  Story.  Eq.  Pl„  sea  40.  v.  Insurance  Co.,  1  Paige  Ch.  (N.  Y.) 

2  Florida  Southern  Ry.  Ca  v.  Hill,  284;  Colton  v,  Ross,  2  Paige  Ch.  396.  22 
40  F'la.  1.  23  a  Rep.  566,  Am.  Dec.  648;  Lloyd  v.  Brewster,  4 

3  Story,  Eq.  PL,  sec,  426;  Gaunt  v,  Paige  Ch.  537,  27  Am,  Dec,  8a 
rroelich,  24  111.  App.  303;    Hubbard  *  Hammond  v.  Michigan  St  Bank, 
V.  Urton,   67   Fed,  419;    Gatiing   v.  Walk.  Ch.  (Mich.)  214. 

Newell,  12  Ind.  118;  Western  Ina  Co. 


§  46.]  BILL   IN    EQUITY.  4f 

entitled  to  by  the  case  made  in  the  stating  part  of  the  bill  be- 
cause of  the  prayer  for  general  relief.  And  where  the  prayer 
of  the  bill  was  "  that  the  defendant  stand  to,  abide  by  and 
perform  such  order  and  decree  as  to  the  court  shall  seem 
agreeable  to  equity  and  good  conscience,"  it  was  held  that  this 
in  substance  was  a  general  prayer  for  relief  and  would  justify 
the  court  in  giving  any  relief  which  was  consistent  with  the 
allegations  of  the  bill  and  warranted  by  the  proof.i  And  where 
complainant  had  prayed  for  a  different  relief  than  he  was  en- 
titled to  by  the  case  made  in  his  bill,  it  was  held  that  it  was 
for  the  court  to  determine  from  the  material  allegations  and 
the  proofs  at  the  hearing  the  relief  he  was  entitled  to  and  to 
make  the  decree  accordingly,  thus  determining  the  suit.^ 

If  an  injunction  is  sought  for  by  the  complainant  he  should 
specifically  pray  for  a  decree  of  the  court  enjoining  the  de- 
fendants from  performing  the  particular  acts  complained  of 
or  alleged  in  the  bill  as  having  been  threatened,  following  the 
allegations  made  in  respect  to  the  same  in  the  stating  pa"rt  of 
the  bill.     That  which  is  sought  to  be  enjoined  should  be  par- 

i  French  v.  Commercial  Bank,  79  Farley  Mfg.  Co..  76  la.  735.  In  Web- 
Ill.  App.  110;  1  Dan.  Ch.  PL  &  Prac.  ster  et  al.  v.  Harris  et  al.,  16  Ohio 
377,  2  Madd.  171,  where  the  author  Rep.  490.  "The  bill,  after  st'ating  the 
says:  "  Formerly  it  appears  to  have  case  and  bringing  before  the  court 
been  thought  sufficient  if  the  bill  the  proper  parties,  prays  for  a  decree 
contained  only  a  prayer  for  general  against  all  ti.e  defendants,  compel- 
rehet,  which  Mr.  Robbins.  an  emi-  ling  them  to  release  to  complainants 
nent  counsel,  used  to  say  'was  the  all  their  claims  and  rights  at  law  in 
best  prayer  next  to  the  Lord's  the  land  described,  or  to  execute  a 
prayer; '  but  the  practice  now  is,  to  conveyance  and  also  a  decree  to 
pray  particular  relief,  though  if  the  quiet  the  title  of  complainants,  and 
particular  relief  prayed  by  the  bill  that  they  may  have  such  other  relief 
cannot  be  given  exactly  as  prayed,  as  pertains  to  equity.  We  can  dis- 
the  court  will  assist  the  particular  cover  no  difficulty  in  the  way  of  a 
prayer  under  the  general  prayer."  proper  decree.    There  is  no  need  of 

ml^^i'^^rT'':  ^°^'^^'''  ^*  ^^'-  ^PP-  a"  express  prayer  to  reform  the  con- 
lOfr-lia  Under  a  general  prayer  the  tract  .  .  .  A  prayer  for  its  execu- 
rehef  warranted  by  the  allegations  tion,  or  for  such  relief  as  pertains  to 
in  the  bill  and  the  evidence  will  be  equity,  is  sufficient."  Mateer  v.  Cock- 
granted,  Lane  v.  Un.  Nat  Bank,  75  rill,  18  Tex.  Civ.  App.  391.  45  S.  W 
111.  App.  299;  Brown  v.  Bank,  177  755;  Morris  v.  Holland,  10  Tex.  Civ. 
111.  171,  52  N.  E.  361.  Under  prayer  App.  474;  Walker  v.  Converse,  148 
for  general  relief  the  complainant  is  II L  622,  36  N.  K  202;  Bergmann  v. 
entitled  to  any  remedy  applied  by  Salmon  et  al.,  29  N.Y.  S.  9(38;  Mc- 
the  law  for  the  particular  injury  or  Kenzie  v.  Flaunery  &  Co.,  90  Ga. 
wrong    complained  o£     Thomas   v.  590. 


48  BILL    IN    EQUITY.  [§  47. 

ticularly  set  forth,  for  the  writ  of  injunction,  if  obtained, 
should  follow  the  prayer  and  will  be  limited  by  it,  the  com- 
plainant being  entitled  to  no  more  than  he  prays  for;  for  ordi- 
narily the  writ  of  injunction  will  not  be  supported  by  a  prayer 
for  general  relief,  but  must  be  especially  prayed  for.^ 

§  47.  (9)  Prayer  for  process. —  In  this  part  of  the  bill  the 
complainant  prays  for  the  writ  of  the  court  which  is  usually 
issued  to  compel  the  appearance  of  the  defendants  and  their 
answer  to  the  complainant's  bill.  The  writ  prayed  for  is  the 
writ  of  subpoena.  Originally,  this  process  was  a  writ  in  the 
court  of  common  law,  where  it  was  and  still  is  used  to  compel 
the  attendance  of  witnesses  to  testify  in  causes  there  pending. 
At  a  very  early  time  in  the  formative  period  of  the  chancery 
procedure,  this  writ,  changed  in  its  form  to  meet  the  desired 
purpose,  was  adopted  by  the  chancery  court.  It  in  substance 
commands  the  defendant  to  appear  at  a  certain  day  and  an- 
swer the  complainant's  bill  of  complaint  under  certain  pen- 
alties therein  mentioned.  The  prayer  for  process  must  name 
the  defendants  to  whom  the  complainant  desires  the  writ  to 
issue,  and  it  will  not  be  sufficient  to  mention  them  as  defend- 
ants merely,  without  naming  each  person  and  with  sufficient 
description  to  identify  them  as  the  same  persons  mentioned  in 
the  stating  part  of  the  bill.  Persons  not  named  in  this  part  of 
the  bill  will  not  be  considered  as  parties  defendant;  it  has, 
however,  been  held  that  a  bill  is  not  demurrable  which  has  no 
prayer  for  process  where  the  defendants  are  required  to  an- 
swer, and  are  named  both  in  the  caption  and  the  body  of  the 
bill.^  If  an  injunction  is  desired,  a  writ  of  injunction  should  be 
prayed  for  in  this  part  of  the  bill,  naming  the  persons  against 
whom  the  writ  is  to  issue  in  such  a  way  as  to  identify  them  as 
the  same  persons  against  whom  an  injunction  is  sought. 

1  Story,  Eq.  PL,  sec.  41.  in   Sheridan   v.    Cameron,  65  Mich. 

2  Jennes  v.  Landis,  84  Fed.  73;  Orr  680,  it  was  held  that  the  chancery 
Shoe  Co.  V.  Kimbrough,  99  Ga.  143.  rule  requiring  the  prayer  for  process 
In  Pardridge  v.  Brennan,  64  Mich,  to  identify  the  parties  would  not 
575,  it  was  held  that  an  omission  to  make  a  bill  fatally  defective  for 
mention  defendant  in  the  prayer  for  want  of  it  if  the  parties  were  other- 
process  is  open  to  amendment    And  wise  identified. 


CHAPTER  lY. 


PARTIES  TO  THE  BILL. 


§  48.  The   aim   of  the  equity  court 
is  to  do  complete  justice. 

49.  Classification  of  parties. 

50.  Exceptions  to  the  rule  that  all 

interested  must  be  made 
parties. 

Fiist.  Where  the  interested 
parties  in  the  controversy 
are  very  numerous. 

Second.  Where  the  party  is 
absent  from  the  jurisdic- 
tion. 

Third.  Where  certain  parties 
interested  are  unknown. 

Fourth.  Where  a  personal 
repiesentativeof  a  deceased 
person  is  a  necessary  party 
but  his  authority  is  dis- 
puted. 

51.  Who  sliould  be   parties   com- 

plainant. 

52.  Real  parties  in  interest. 

53.  One  for  all  or  a  part  for  many. 

54.  Infants  as  complainants 

55.  Married  women  as  plaintiffs. 


56.  Idiots,     lunatics,    and    weak- 

minded  persons. 

57.  Parties  defendant. 

58.  Some  exceptions. 

59.  Persons  partially  incapacitated. 

60.  Joinder,  misjoinder,  non-join- 

der of  coniplainanta 

(1)  Joinder  of  complainants. 

(2)  Misjoinder  of   complain- 

ants. 

(3)  Non  joinder  of  complain- 

ants. 

61.  Joinder,   misjoinder,  non-join- 

der of  defendants. 

(1)  Joinder  of  defendants. 

(2)  Misjoinder  of  defendants, 

(3)  Non-joinder    of     defend- 

ants. 

62.  Bringing  in  new  parties. 

63.  Intervention. 

64.  Some   observations  as   to  par- 

ties —  Corporations  —  Part- 
nerships—  Trustee  and  ces- 
tui que  trust  —  Heirs,  execu- 
tors and  administrators. 


§  48.   The  aim   of  the  equity  court  is  to  do  complete 

justice.— It  is  a  common  expression  that  "courts  of  e(]uity 
delight  to  do  justice  not  by  halves,"  and  so  it  is  a  rule  of 
equity  pleading  that  all  persons  interested  in  the  object  of  the 
bill  should  be  made  parties,  either  complainants  or  defend- 
ants. Every  one  whose  rights  are  to  be  adjudicated  is  entJtIed 
to  his  day  in  court  and  a  full  opportunity  to  defend  or  present 
his  case.  The  equity  court  will  not  undertake  to  settle  a  legal 
or  equitable  controversy  and  determine  the  respective  rights 
of  persons  interested,  unless  those  persons  are  brought  into 
court  and  subjected  to  its  juris  liction.  Complete  justice,  it  is 
said,  is  the  constant  aim  of  the  equity  court;  a  settlement  of 
4 


50  PARTIES    TO   THE    BILL.  [§  48. 

the  entire  case  in  the  one  suit,  that  a  multiplicity  of  suits  may 
be  avoided  by  making  a  decree  that  will  settle  every  contro- 
versy involved  in  the  litigation  in  accordance  with  the  rights 
of  the  parties.     And  where  persons  have  a  common  interest 
in  the  relief  sought  by  the  bill,  though  they  claim  under  dis- 
tinct and  separate  titles  and  possess  independent  interests, 
they  may  join  in  a  bill  in  equity  and  thus  prevent  a  multi- 
plicity of  suits.^     And  where  through  the  false  representations 
of  a  third  party,  made  with  intention  to  influence  two  stock- 
holders acting  in  unison,  and  by  reason  of  which  they  were 
induced  to  part  with  their  property  for  a  consideration  far  be- 
low its  value,  it  was  held  that  such  stockholders  might  join  as 
parties  complainant  in  one  action  to  obtam  a  rescission  of  the 
sale  for  such  fraud.     The  court  say:    "Ordinarily  a  separate 
misrepresentation  to  one  is  not  a  misrepresentation  to  two; 
but  if  the  situation  is,  to  the  knowledge  of  the  fraudulent 
actor,  such  that  a  separate  misrepresentation  to  one  will  reach 
two,  and  is  intended  to  be  to  two,  and  pursuant  to  the  inten- 
tion becomes  so,  then  the  misrepresentation  is  to  two.     The 
deceit  was  single  in  act  and  utterance,  but  joint  in  operation 
and  effect.     The  complaint  shows  that,  although  these  plaint- 
iffs severally  owned  their  quota  of  shares,  they  nevertheless 
acted  in  concert  respecting  them  and  the  interests  represented 
by  them,  and  were  by  the  same  fraud  of  the  defendant  in- 
duced to  act  in  concert  in  selling  their  stock  to  him.     .     .     . 
The  wrong  of  the  defendant  destroyed  their  unity  of  action 
as  owners  of  the  stock,  and  it  is  agreeable  to  equity  that  the 
plaintiffs  should  be  extricated  together,  and  under  the  facts 
they  allege  be  permitted  to  act  together  in  rescinding  the  sale 
and  in  reinstating  themselves  in  their  former  position.     The 
fraud  alleged  is  of  that  single  character  and  bifold  or  manifold 
effect  that  in  order  to  present  its  full  scope  both  causes  of 
action  should  be  united;  and  also  in  order  to  avoid  two  actions 
equity  should  take  cognizance  of  the  fraud  in  one  and  dispose 
of  it  once  for  all,  to  the  relief  of  both  parties  to  the  action, 
whose  like  interests  have  been  in  like  manner  injured  by  it."^ 
No  matter  how  numerous  the  persons  who  have  a  legal  or 

1  Lonsfiale  Co.  et  al.  v.  Woonsocket        ^  Bradley  v.  Bradley,  165  N.  Y.  183, 
et  al.,  21  R.  I.  498,  44  Atl.  929,  and    and  casts  cited  on  page  187. 
cases  cited  at  page  930. 


§48.] 


PARTIES    TO    THE    BILL. 


51 


beneficial  interest  in  the  subject-matter  of  the  controversy,  all 
should  be  made  parties,  so  that  the  court  may  by  its  decree 
cover  the  entire  case  and  all  the  interests  involved  in  it  by  one 
decree.  "When  all  the  parties  are  before  the  court,  the  whole 
case  may  be  seen;  but  it  may  not,  where  the  conflicting  inter- 
ests are  not  brought  out  upon  the  pleadings  by  the  original 
parties  thereto."  ^  It  is  difficult  to  lay  down  any  settled,  fixed 
rule  as  to  who  should  be  parties;  legal  and  beneficial  interest 
in  the  object  of  the  suit  is  no  doubt  a  test,  but  there  may  be 
persons  who  would  seem  to  have  a  beneficial  interest  in  the 
object  of  the  bill  growling  out  of  certain  relations  and  yet  not 
be  proper  parties;  as,  for  example,  persons  who  are  entitled 
merely  to  a  future  and  uncertain  contingent  interest;  or  where 
the  interest  is  of  such  a  nature  that  it  may  be  immediately 
barred  by  the  defendant;  or  where  the  interest  is  a  simple 
contract  creditor's  interest.^     "  The  grand  principle  which  un- 


1  Story,  Eq.  PL,  sec.  72;  West  v. 
Randall.  2  Mason,  190. 

2  "The  truth  is  that  the  general 
rule  in  relation  to  parties  does  not 
seem  to  be  founded  on  any  positive 
and  uniform  principle,  and  there- 
fore it  does  not  admit  of  being  ex- 
pounded by  the  application  of  any 
universal  theorem  as  a  test.  It  is  a 
rule  founded  partly  in  artificial  rea- 
soning, partly  in  considerations  of 
convenience,  partly  in  the  solicitude 
of  courts  of  equity  to  suppress  mul- 
tifarious litigation,  and  partly  in  the 
dictates  of  natural  justice,  that  the 
rights  of  persons  ought  not  to  be 
affected  in  any  suit  without  giving 
them  an  opportunity  to  defend  them. 
Whetiier,  tlierefore,  the  common 
formulary  be  adopted,  that  all  per- 
sons materially  interested  in  the  suit, 
or  in  the  subject  of  the  suit,  ought 
to  be  made  parties,  or  tiiat  all  per- 
sons materially  interested  in  the  ob- 
ject of  the  suit  ought  to  be  made 
parties,  we  express  but  a  general 
truth  in  the  application  of  the  doc- 
trine, which  is  useful  and  valuable 
indeed  as  a   practical  guide,  but  is 


still  open  to  exceptions,  and  qualifi- 
cations, and  limitations,  the  nature 
and  extent  and  application  of  which 
are  not,  and  cannot,  independently 
of  judicial  decision,  be  always  clearly 
defined.  On  this  account  it  is  of 
great  importance  to  ascertain  what 
are  the  admitted  exceptions  to  the 
general  rule  and  to  ascertain  what 
are  the  grounds  on  which  they  are 
founded;  for  when  these  exceptions, 
and  the  grounds  thereof,  are  fully 
seen  and  explained,  they  will  fur- 
nish strong  lights  to  guide  us  in  our 
endeavors  to  apply  the  rule  and  the 
exceptions  to  new  cases  as  they  arise 
in  judgment  And  here  it  may  be 
proper  to  state  the  remark  of  a 
learned  chancellor,  speaking  upon 
this  very  subject  of  parties,  as  con- 
taining a  salutary  admonition  and 
instructive  lesson,  that  it  is  the  duty 
of  every  court  of  equity  to  adapt  its 
practice  and  course  of  proceeding, 
as  far  as  possible,  to  the  existing 
state  of  society,  and  to  apply  its  ju- 
risdiction to  all  new  cases  which, 
from  the  progress  daily  making  in 
the  affairs  of  men.  must  continually 


52  PARTIES   TO   THE    BILL.  [§  49. 

derlies  the  doctrine  of  equity  in  relation  to  parties  is  that  every 
judicial  controversy  should,  if  possible,  be  ended  in  one  litiga- 
tion; that  the  decree  pronounced  in  the  single  suit  should  de- 
termine all  rights,  interests  and  claims,  should  ascertain  and 
define  all  conflicting  relations,  and  should  forever  settle  ail 
questions  pertaining  to  the  subject-matter."^ 

§  40.  Classification  of  parties.— The  supreme  court  of  the 
United  States  has  divided  parties  to  suits  in  equity  into  three 
classes:  First,  formal  parties;  second,  necessary  parties;  and 
third,  indispensable  parties.  The  court  say :  "  Formal  parties  are 
those  who  have  no  interest  in  the  controversy  between  the  im- 
mediate litigants,  but  have  an  interest  in  the  subject-matter 
which  may  be  conveniently  settled  in  the  suit,  and  thereby  pre- 
vent further  litigation.  They  may  be  parties  or  not,  at  the  op- 
tion of  the  complainant.  '  Necessary  parties '  are  those  who  have 
an  interest  in  the  controversy,  but  whose  interests  are  sepa- 
rable from  those  of  the  parties  before  the  court,  and  will  not 
be  directly  atfected  by  a  decree  which  does  complete  and  full 
justice  between  them.  Such  persons  must  be  made  parties  if 
practicable,  in  obedience  to  the  general  rule  which  requires 
all  persons  to  be  made  parties  who  are  interested  in  the  con- 
troversy, in  order  that  there  may  be  an  end  of  litigation;  but 
the  rule  in  the  federal  courts  is  that  if  they  are  beyond  the 
jurisdiction  of  the  court,  or  if  making  them  parties  would  oust 
the  jurisdiction  of  the  court,  the  case  may  proceed  to  a  final 
decree  between  the  parties  before  the  court,  leaving  the  rights 
of  the  absent  parties  untouched,  and  to  be  determined  in  any 
competent  forum.  The  reason  for  this  liberal  rule  in  dis- 
pensing with  necessary  parties  in  the  federal  courts  will  be 
presently  stated.  'Indispensable  parties' are  those  who  not 
only  have  an  interest  in  the  subject-matter  of  the  controversy, 

arise;  and  not  from  too  strict  an  ad-  Snowden,  68  Md.  118.     "By  interest, 

herence  to  forms  and  rules   estab-  it  is  observable,  is  meant  something 

lished  under  very  different  circum-  more  tlian  is  comprised  in  the  most 

stances,    to    decline    to    administer  ardent   wish  or  partial  feeling.     It 

justice  and   to    enforce    rights   for  implies  a  right  in  the  subject  of  con- 

wliich  there  is  no  other  remedy."  troversy  which  a  decree  more  nearly 

Story,  Eq.  PI.,  sec.  76c;  Fitz^ibbon  v.  or  remotey  may  affect."    Crocker  v. 

Barry,  78   Va.   755;    Hartmaii's   Ap-  Higgins.  7  Conn.  342. 
peal,   90  Pa.  St.  203;  Story.  Eq.  Pi.,        ^  Pomeroy,    Rem.    and     Remedial 

sec   301;    Postal  Tel.   Cable   Co.   v.  Rights,  sec.  247. 


PARTIES    TO   THE   BILL.  53 


§49.] 

but  an  interest  of  such  a  nature  that  a  final  decree  cannot  be 
made  without  either  affecting  their  interest,  or  leaving  the 
controversy  in  such  a  condition  that  its  final  termination  may 
be  wholly  inconsistent  with  equity  and  good  conscience. 

"  The  general  rule  as  to  parties  in  chancery  is  that  persons 
falling  within  the  definition  of  '  necessary  parties '  must  be 
brought  in,  for  the  purpose  of  putting  an  end  to  the  whole 
controversy,  or  the  bill  will  be  dismissed;  and  this  is  still  the 
rule  in  most  of  the  state  courts.  But  in  the  federal  courts  this 
rule  has  been  relaxed.  The  relaxation  resulted  from  two 
causes:  First,  the  limitation  imposed  upon  the  jurisdiction  of 
these  courts  by  the  citizenship  of  the  parties;  and  secondly, 
their  inability  to  bring  in  parties,  out  of  their  jurisdiction,  by 
publication.  The  extent  of  the  relaxation  of  the  general  rule 
in  the  federal  court  is  expressed  in  the  forty-seventh  equity 
rule.  That  rule  is  simply  declaratory  of  the  previous  decisions 
of  the  supreme  court  on  the  subject  of  the  rule.  The  supreme 
court  has  said  repeatedly  that,  notwithstanding  this  rule,  a 
circuit  court  can  naake  no  decree  affecting  the  rights  of  an 
absent  person,  and  that  all  persons  whose  interests  would  be 
directly  affected  by  the  decree  are  indispensable  parties."  ^ 

This  classification  has  been  approved  and  followed  in  most 
of  the  states,  and  in  very  many  cases  in  the  United  States 
court.  It  would  seem,  however,  that  it  might  be  reduced 
to  two  classes  of  parties,  namely:  first,  proper  parties;  and 
second,  indispensable  parties.  (1)  Proper  parties  may  be 
said  to  be  parties  who  are  not  necessary  and  indispensable  to 
the  settlement  of  the  controversy;  parties  without  whom  the 
court  might  make  a  satisfactory  and  complete  decree.  They 
are  perhaps  better  defined  by  a  definition  of  necessary  and  in- 
dispensable parties.  (2)  Indispensable  parties,  or  parties  which 
are  necessary  and  indispensable  to  the  object  of  the  suit,  are 
such  parties  as  must  necessarily  be  brought  into  the  case  be- 
fore a  complete  and  satisfactory  decree  can  be  made  settling 
all  the  interests  involved;  they  are  persons  having  such  an  in- 
terest that  a  final  decree  cannot  be  made  without  either  afifect- 

1  Chadbourne  V.  Coe,  2  U.  S.  C.  C.  Coiron   v.  Millaudon,  19  How.   113; 

A.  327,  51  Fed.  479;  Shields  v.   Bar-  Williams  v.  Bankhead,  19  Wall.  563; 

row,    17    How.   (U.   S.)   139;    Ribon  Kendig  v.  Dean,  97  U.S.  423;  Alex- 

V.  Railway  Co.,  16  Wall.  (U.  S.)  450;  ander  v.  Horner,  1  McCrary,  634. 


54 


PARTIES   TO   THE    BILL. 


[§  ^». 


ing  that  interest,  or  leaving  the  controversy  in  such  a  condi- 
tion that  its  final  termination  may  be  wholly  inconsistent 
with  equity  and  good  conscience.^  Or,  as  stated  in  Kendig  v. 
Dean^  parties  "  whose  interest  in  the  subject-matter  of  the 
suit,  and  the  relief  sought,  are  so  bound  up  with  that  of  the 
other  parties  that  their  legal  presence  as  parties  to  the  pro- 
ceeding is  an  absolute  necessity,  without  which  the  court  can- 
not proceed.  In  such  cases  the  court  refuses  to  entertain  the 
suit  when  these  parties  cannot  be  subjected  to  its  jurisdiction." 
Such  are  indispensable  parties;  while  proper  parties,  or  parties 
which  by  the  United  States  court  are  denominated  necessary 
but  not  indispensable  parties,  are  parties  who  appear  to  be 
necessary,  but  without  whom,  under  certain  circumstances,  the 
court  will  proceed, —  as,  for  example,  when  they  are  not 
within  the  jurisdiction  of  the  court  and  cannot  be  obtained; 
or  whose  interests  are  separable  from  the  interest  of  those  par- 
ties who  are  deemed  indispensable.* 


J  Shields  v.  Barrow,  17  How.  139; 
Russell  V.  Clark's  Ex'rs.  7  Cranch 
(U.  S.),  98. 

In  California  v.  Southern  Pacific 
Co.,  157  U.  S.  329,  249,  the  court  say: 
"It  was  held  in  Mallow  v.  Hinde,  12 
Wheat.  193, 198,  that  where  an  equity 
cause  may  be  finally  decided  between 
the  parties  litigant  without  bringing 
others  before  the  court  who  would, 
generally  speaking,  be  necessary  par- 
ties, such  parties  may  be  dispensed 
with  in  the  circuit  court  if  its  pro- 
cess cannot  reach  them,  or  if  they 
are  citizens  of  another  state:  but  if 
the  rights  of  those  not  before  the 
court  are  inseparably  connected  with 
the  claim  of  the  parties  litigant, 
to  that  a  final  decision  cannot  be 
made  between  them  without  affect- 
ing the  rights  of  the  absent  parties, 
the  peculiar  constitution  of  the  cir- 
cuit court  forms  no  ground  for  dis- 
pensing with  such  parties."  And  the 
court  remarked:  "We  do  not  put 
this  case  upon  the  ground  of  juris 
diction,  but  upon  a  much  broader 
ground,  which  must  equally  apply  to 


all  courts  of  equity  whatever  may 
be  their  structure  as  to  jurisdiction. 
We  put  it  upon  the  ground  that  no 
court  can  adjudicate  directly  upon 
a  person's  right,  without  the  party 
being  actually  or  constructively  be- 
fore the  court."  Hawes  v.  Oakland, 
104  U.  S.  450:  Davis  v.  Peabody,  170 
Mass.  397;  Land  Co.  v.  Peck,  112  111. 
408:  Andrews'  American  Law,  1100. 

2  97  U.  S.  423. 

3  Sioux  City,  etc.  Rj^  Co.  v.  Trust 
Co.,  27  U.  S.  C.  C.  A.  73,  and  see  cases 
cited.  Irick  v.  Black,  17  N.  J.  Eq. 
189;  Cassidy  v.  Shimmin,  122  Mass. 
409;  Sears  v.  Hardy,  120  Mass.  524; 
Davis  V.  New  York,  14  N.  Y.  527; 
Oliphiut  V.  Mansfield  Co.,  36  Ark. 
191;  Tucker  v.  Bean,  65  Me.  352; 
Wakefield  v.  Marr,  65  Me.  341 ;  Michi- 
gan State  Bank  v.  Gardner,  3  Gray 
(Mass.),  305;  Watson  v.  Lyon  Brew- 
ing Co.,  61  Mich.  595;  Bradley  v.  Gil- 
bert, 155  111.  154;  Munford  v.  Sprague, 
11  Paige,  438;  Day  v.  Wetherby,  29 
Wis.  363.  See  list  of  cases  15  Encyl. 
of  Pleading,  013,  etc.;  Markwell  v. 
Markwell,  157  Mo.  326,  57  S.  W.  1078. 


P   ^Q  -I  PARTIES    TO    THE    BILL.  ^'^ 

8  50    Exceptions  to  the  rule  that  all  interested  must  be 
made  parties.— To  the  general  rule  that  all  persons  interested 
in  the  object  of  the  suit  must  be  made  parties  there  are  excep- 
tions when  the  persons  belong  to  that  class  who  are  deemed 
proper  or  necessary  parties  but  are  not  absolutely  indispen- 
sable     If  the  interest  of  the  parties  is  such  that  the  court  may 
make  a  decree  without  them,  or  without  materially  affecting 
their  ricrhts;  if  the  whole  controversy  can  be  settled  and  de- 
termined; or,  if  there  are  sufficient  parties  before  the  court  to 
insure  a  fair  trial  of  the  issue  in  behalf  of  all,  then,  under  cer- 
tain circumstances,  the  court  will  proceed  in  the  absence  of 
such  parties.     These  exceptions  are  -  First,  lohere  the  interested 
parties  in  the  controversy  are  very  numerous.     The  exception 
has  been  stated  as  follows:     "The  general  rule  as  to  parties 
in  chancery  is,  that  all  ought  to  be  made  parties  who  are  in- 
terested in  the  controversy,  in  order  that  there  may  be  an  end 
of  litigation.     But  there  are  qualifications  cf  this  rule  arising 
out  of'' public  policy  and  the  necessities  of  particular  cases. 
The  true  distinction  appears  to  bo  as  follows:     First,  where  a 
person  will  be  directly  affected  by  a  decree,  he  is  an  indispen- 
sable party,  unless  the  parties  are  too  numerous  to  be  brought 
before  the"  court,  when  the  case  is  subject  to  a  special  rule."^ 

1  Williams  V.  Bankhead.  19  Wall,  the  court  said:  "How  far  sucli  per- 
(U  S)  563  571-  Mc Arthur  v.  Scott,  sons  should  be  made  parties  to  the 
113  U  S  340  889;  1  Barb.  Ch.  Prac.  suit  depends  largely  upon  the  discre- 
og  j^qJ.^  '  tion  of  the  court,  considermg  on  the 

"  The  United  States  court  meets  this    one  hand  the  difficulty  and  expense 
question  by  rule.     Rule  48  (U.  S.  Eq.     of  joining  them,  and  on   the  other 
Rules)  provides,  "  where  the  parties     the  paramount  importance  of  havmg 
on  either  side   are  very  numerous,     such  a  representation  of  the  mterests 
and  cannot,  without  manifest  incon-    concerned  as  may  enable  the^  ques- 
venience  and  oppressive  delays   in    tion  at  issue  to  be  fairly  tried       Cit- 
the  suit,  be  all  brought  before  it,  the    ing  Stevenson  v.  Austin,  6  Aleta  474; 
court  in  its  discretion  may  dispense     Harvey  v.  Harvey,  4  Beav.  215  and  5 
with  making  all  of  them  parties,  and    Beav.  134.     And  in  Board  of  Super- 
may  proceed  in  the  suit,  having  suf-    visors,  etc.  v.  Walbridge  et  al.,  38  Wis. 
ficient  parties  before  it  to  represent     179,  where  this  question  was  before 
all  the  adverse  interests  of  the  plaint-    the  court,  the  court  say  with  refer- 
iffs  and  the  defendants  in  the  suit    ence  to  the  defendants,  that  they  all 
properly  before  it.  But,  in  such  cases,     acquired  rights  under  the  agreement, 
the  decree  shall  be  without  preju-    "and  it  seems  to  us  plain  that  the 
dice  to  the  rights  and  claims  of  all    agreement  cannot  be  adjudged  void 
the  absent  parties."  without  having  all  the  parties  inter- 

In  Smith  V.  Williams,  116  Mass.  510,     ested  in  it  before  the  court.     It  is  a 


56  PARTIES   TO   THE   BILL.  [§  50. 

In  Newconib  v.  Horton'^  the  court  say:  "It  is  an  elementary 
rule  in  chancery  pleading  that  every  person  who  is  at  all  in- 
terested in  the  event  of  a  suit,  or  necessary  to  the  relief,  must 
be  made  u  party  in  order  to  enable  the  court  to  settle  the  rights 
of  all  and  make  a  complete  and  final  decree  upon  the  merits. 
This  rule  was  dispensed  with  where  it  was  inconvenient,  diffi- 
cult or  impracticable,  on  account  of  the  number  or  situation 
of  the  parties,  to  unite  them  in  one  suit." 

Second  exception:  Where  the  party  is  absent  fi'om  the  jurisdic- 
tion. If  no  prejudice  to  the  absent  party  could  result  from  the 
decree,  the  court  will  proceed  without  him,  but  if  any  injury 
would  result  therefrom  it  will  not  proceed. 

In  Towle  v.  Pierce'^  it  was  held  that  one  outside  the  jurisdic- 
tion need  not  be  made  a  party  if  a  decree  can  be  made  without 
manifest  injustice  to  him.  This  exception  is  provided  for  by 
rule  in  the  United  States  equity  court.'  By  reference  to  the 
rule,  however,  it  will  be  noticed  that  the  court  at  all  times  un- 
dertakes to  protect  the  right  of  the  interested  absent  party, 
and  in  that  view  it  can  hardly  be  said  to  be  an  exception  to 
the  general  rule  farther  than  that  the  court  will  proceed  with- 
out them,  but  without  prejudice  to  them. 

Third  exception:  Where  certain  parties  interested  are  unTtnoion. 
The  usual  practice  in  such  case  is  to  allege  in  the  bill  the  fact 
that  there  are  parties  unknown  to  the  complainant,  at  the 
same  time  seeking  a  discovery  of  such  parties  for  the  purpose 
of  bringing  them  before  the  court.  In  such  case  the  court  will 

general  rule  that,  where  a  party  is  of  the  jurisdiction  of  the  court  or  in- 
directly affected  by  the  decree,  he  capable  otherwise  of  being  made 
is  an  indispensable  party;  and  the  parties,  or  because  their  joinder 
courts  only  depart  from  the  rule  would  oust  the  jurisdiction  of  the 
when  the  parties  are  so  numerous  court  as  to  the  parties  before  the 
that  it  would  be  inconvenient  or  im-  court,  the  court  may  in  their  discre- 
possible  to  comply  with  it."  Story,  tion  proceed  in  the  cause  witiiout 
Eq.  PL,  sec  94;  Whitney  v.  Mayo,  15  making  such  persons  parties;  and  in 
111.  251.  such  cases  the  decree  shall  be  with- 
'  18  Wis.  566,  568.  out  prejudice  to  the  rights  of  the 
213  Mete.  (Mass.)  329.  absent  parties."  Graham  v.  Elmore, 
3U.  S.  Eq.  Rule  47  provides:  "In  Har.  Ch.  (Mich.)  265;  Mallow  v. 
all  cases  where  it  shall  appear  to  the  Hinde,  12  Wheat.  193;  Union  Mills, 
court  that  persons  who  might  other-  etc.  Co.  v.  Dangberg,  81  Fed.  73;  Mc- 
wise  be  deemed  necessary  or  proper  Arthur  v.  Scott,  113 U.S. 340; Gregory 
parties  to  the  suit  cannot  be  made  v.  Stetson,  133  U.  S.  579;  Farmers', 
parties  by  reason  of  their  being  out  etc.  Bank  v.  Polk,  1  Del.  Ch.  167. 


§  50.j  PARTIES   TO    THE   BILL.  5T 

allow  tlie  case  to  proceed  without  the  unknown  parties,  provided 
the  answer  to  the  bill  does  not  disclose  their  whereabouts,  or 
allesre  the  statement  in  the  bill  to  be  untrue.^ 

Fourth  exception:  Where  a  jpersonal  representative  of  a  de- 
<iease(i person  is  a  necessary  party ^  hut  his  authority  is  disputed. 
In  such  case  the  court  of  equity  will  not  refuse  to  proceed  with 
the  case,  nor  will  it  try  the  question  in  dispute  as  to  the  legal 
right  of  the  person  to  represent  the  deceased  party.^ 

It  may  be  said,  however,  that  these  exceptions  have  their 
foundation  in  necessity;  that  where  it  is  possible  for  the  court 
to  bring  the  interested  parties,  or  their  representatives,  into 
court  to  defend  their  interests,  it  will  not  proceed  without  them ; 
and  so  it  follows  that  under  the  present  rules  of  equity  plead- 
ing, and  present  existing  statutes,  these  parties  may  be  con- 
structively brought  into  court.  As,  for  example,  if  the  parties 
are  absent  from  the  jurisdiction,  the  statutes  provide  a  manner 
in  which  they  may  be  constructively  served  by  publication  of 
an  order  for  appearance,  so  that  the  exceptions  to  the  rule  can 
hardly  be  said  to  be  as  forceful  under  the  present  equity  practice 
as  they  formerly  were.  Some  of  the  courts,  however,  have 
gone  to  the  extent  of  holding  that  an  exception  to  this  rule 
may  be  considered  where  it  is  entirely  impracticable  to  make 
the  persons  parties.' 

1  Story,  Eq.  PL,  sec.  93;  Alger  v.  terially  interested  in  the  subject- 
Anderson,  78  Fed.  729;  Stevenson  v.  matter  of  the  suit,  either  as  corn- 
Austin,  3  Mete.  480.  Story,  in  note  plainants  or  defendants,  ought  to  be 
1,  sec.  93,  citing  Fenn  v.  Craig,  3  made  parties,  in  order  that  a  com- 
Younge  &  Coll.  216,  224,  following  plete  decree  may  be  made  which  will 
the  holding  of  Mr.  Baron  Aiderson,  bind  the  rights  of  all,  and  prevent  a 
said,  "that  where  the  bill  alleged  useless  multiplication  of  suits.  But 
that  the  other  proper  parties  were  to  this  rule  there  are  many  excep- 
unknown  so  that  there  was  an  im-  tions.  It  is  a  rule  adopted  for  the 
possibility  in  bringing  them  before  convenientadministration  of  justice, 
the  court,  it  would  be  a  gross  absurd-  and  is  dispensed  with  when  it  be- 
ity  to  require  thera  to  be  made  par-  comes  extremely  difficult  or  incon- 
ties,  or  to  allowan  objection  for  want  venient.  .  .  .  But  this  exception 
of  them."  does  not  extend  to  those  cases  where 

2  Bank  v.  Hastings,  1  Doug.  (Mich.)  the  rights  of  persons  not  before  the 
225;  Faulkner  v.  Davis,  18  Grat.  (Va.)  court  are  so  inseparably  connected 
651;  H-cirnson  v.  Wallton,  95  Va.721;  with  the  claims  of  the  parties  liti- 
Story,  Eq.  PI,,  sec.  91.  gant  that    no  decree  can  be   made 

3  1u  Hallett  v.  Hallett,  2  Paige  (N.  without  materially  affecting  the 
Y.),  14,  it  was  held:  "It  is  a  general  rights  of  the  former."  Elmendorf  v. 
rule  in  equity  that  all  persons  ma-  Taylor  et  al.,  10  Wheat.  153;  Harding 


58 


PARTIES   TO   THE   BILL. 


[§  51. 


§51.  Who  should  be  parties  complainant. —  All  persons, 
natural  or  corporate,  whose  equitable  rights  have  been  vio- 
lated, and  who  seek  in  the  court  of  equity  to  maintain  them, 
or  obtain  redress  for  such  violation,  as  well  as  persons  or 
bodies  corporate  whose  legal  rights  have  been  infringed,  and 
their  only  adequate  remedy  is  equitable,  should  be  made  par- 
ties complainant;  and  this  rule  may  be  applied  when  the  rem- 
edy is  sought  by  bill  in  equity,  or  by  an  information  where 
such  proceeding  is  required.     The  concern  of  a  court  of  equity 


V.  Handy.  11  Wheat.  103,  and  other 
authorities. 

In  Wendell  v.  Van  Rensselaer,  1 
Johns.  Ch.  o49,  it  was  said:  "It  is  a 
rule  of  convenience  merely,  and  may 
be  dispensed  with  when  it  becomes 
extremely  difficult  or  inconvenient." 
In  Wilson  v.  Castro,  31  Cal.  4'21, 
438,  the  court  say  with  reference  to 
this  rule  requiring  all  in  interest  to 
be  before  the  court,  that  "it  is  one 
somewhat  of  convenience  and  will 
not  be  rigidly  enforced  where  its 
observance  will  be  attended  with 
great  inconvenience,  and  answer  no 
substantially  beneficial  purpose.  It 
will  be  modified,  or  partially  dis- 
pensed with,  in  the  discretion  of  the 
court,  as  justice  and  the  exigencies 
of  the  case  may  require." 

In  Stevenson  et  al.  v.  Austin,  3 
Mete.  (Mass.)  477,  480,  where  this 
question  was  before  the  court,  the 
court  say:  "It  is  said  that  the  cred- 
itors in  this  case  are  numerous, some 
residing  out  of  the  commonwealth, 
and  the  residence  of  others  being 
unknown.  We  think,  therefore,  that 
it  is  suflBcient  to  make  the  assignees 
parties,  who  alone  have  a  right  to 
claim  the  property  (they  having  the 
legal  title),  and  who  are  empowered, 
and  whose  duty  it  is,  to  represent  the 
interests  of  and  to  act  for  all  the 
creditors  interested  in  the  trust* 

In  Adair  v.  The  New  River  Co..  11 
Ves.  445,  it  is  said  by  Lord  Eldon 
that  it  is  not  necessary  to  make  all 


the  individuals,  who  are  interested, 
parties:  'The  court  therefore  has  re- 
quired so  many,  that  it  can  be  justly 
said  they  will  fairly  and  honestly 
try  the  right  between  themselves, 
all  other  persons  interested,  and  the 
plaintiff.'  So  in  Lloyd  v.  Loring,  6 
Ves.  779,  Lord  Eldon  says:  'I  have 
seen  strong  passages,  as  falling  from 
Lord  Hardwicke,  that  where  a  great 
many  individuals  are  jointly  inter- 
ested, the  court  will  let  a  few  repre. 
sent  the  whole.'  So  in  Vernon  v. 
Blackerby,  2  Atk.  14.5,  Lord  Hard- 
wicke refers  with  approbation  to  a 
case  decided  in  1720,  where  several 
persons  were  interested,  who  had 
given  a  general  power  and  authority 
to  some  few  only,  and  therefore,  to 
avoid  inconvenience  from  making 
numerous  parties,  the  court  re- 
strained them  to  those  particular 
persons  who  were  intrusted  withtiie 
general  power.  It  is  laid  down  m 
Mitf.  PI.  (3ded.)142.  that  'trustees 
of  real  estate  for  the  payment  of 
debts  or  legacies  may  sustain  a  suit, 
either  as  plaintiffs  or  defendants, 
without  bringing  before  the  court 
the  creditors  or  legatees  for  whom 
they  are  trustees;  and  the  rights  of 
the  creditors  or  legatees  will  be 
bound  by  the  decision  of  the  court 
against  the  trustees.' "  Hale  et  al. 
V.  Hale  etal.,  146  111.  227;  Smith  et 
al.  V.  Roten  et  al.,  44  111.  506;  Brown 
v.  Brown,  86  Tenn.  378,  32a 


§51.] 


PARTIES   TO   THE    BILL. 


5^ 


is  not  so  much  that  certain  persons  shall  be  made  complainants 
and  certain  others  shall  be  impleaded  as  defendants,  as  that 
the  whole  of  the  controversy,  with  all  of  its  interests,  shall  be 
before  the  court  and  subjected  to  its  jurisdiction  so  as  to  be 
bound  by  its  decree.  No  doubt  in  every  suit  in  equity  certain 
persons  whose  rights  have  been  invaded,  and  who  seek  relief, 
are  naturally  and  sometimes  necessarily  complainants,  and  the 
court  in  order  to  decree  full  and  complete  redress  will  insist 
that  they  be  impleaded  as  complainants  rather  than  defend- 
ants; but  this  is  a  matter  which  the  court  can  regulate  at  the 
hearing,  or  by  interlocutory  order  upon  petition,  if  their  inter- 
ests are  so  identical  with  the  interests  of  the  complainant  that 
the  proper  relief  cannot  be  given  unless  they  are  considered 
as  parties  plaintiff.^  The  court  has  similar  powers  if  persons 
are  made  complainants  who  should,  because  of  their  relations 
to  the  case,  have  been  defendants.^     And  so  where  one  has  the 


1  Pomeroy.Rem.&  Remedial  Rights, 
sec.  249.  "The  plaintiff  who  insti- 
tutes an  equitable  action  must  bring 
before  the  court  all  those  persons 
who  have  such  relations  to  the  sub- 
ject-matter of  the  controversy  that, 
in  order  to  prevent  further  litigation 
by  them,  they  must  be  included  in 
and  bound  by  the  present  decree;  in 
other  words,  all  those  persons  who 
are  so  related  to  the  controvei'sy  and 
its  subject-matter,  that,  unless  thus 
concluded  by  the  decree,  they  might 
sat  up  some  future  claim,  and  com- 
mence some  future  litigation  grow- 
ing out  of  or  connected  with  the 
same  subject-matter,  against  the  de- 
fendant who  is  prosecuted  in  tlie 
present  suit,  and  from  whom  the  re- 
lief therein  is  actually  obtained.  The 
principle  as  thus  expressed  assumes, 
what  IS  always  true  in  practice,  that 
in  every  equitable  action  there  is 
some  person,  or  group  of  persons,  like 
a  firm  or  joint  tenants,  wlio  primarily 
institutes  the  proceeding,  and  de- 
mands the  relief  for  his  own  benefit; 
and  him  or  them  we  may  designate 
'  the  plaintiff; '  and  there  is  also  some 
person  or  group  of  persons  against 


whom  all  the  real  demands  are  made> 
and  from  whom  the  substantial  rem- 
edy sought  by  the  action  is  asked, — 
and  him  we  denominate  'the  defend- 
ant.' In  addition  to  these  two  con- 
testants there  are  other  individuals 
described  in  the  foregoing  proposi- 
tion, who  must  also  be  brought  before 
the  court  and  made  parties  to  the  con- 
troversy either  as  co-plaintiffs  or  as 
co-defendants.  Equity  is  satisfied  in 
most  instances  by  making  them  co- 
defendants,  and  they  are  generally 
so  treated  in  actual  practice,  unless 
their  interests  are  so  identical  with 
those  of  the  plaintiff  that  they  must 
participate  in  the  substantial  relief 
awarded  by  the  decree." 

^  In  Lalance,  etc.  Co.  v.  Haberman 
Mfg.  Co..  9.3  Fed.  197,  wliere  one  was 
made  complainant  whose  intere.st 
lay  with  the  defendants,  the  court  at 
an  early  stage  of  the  case  refusing 
to  order  the  party  to  become  a  de- 
fendant, it  was  held  that  the  matter 
might  be  left  until  the  final  hearing, 
when  the  [losition  of  the  parties  could 
be  arranged  and  relief  given  as  their 
respective  rights  required,  but  that 
if  the  co-complainant,  whose  interest 


60  PAKTIES    TO    THE    BILL.  [§52. 

same  right  and  remedy  as  the  complainant  and  touching  the 
same  subject-matter,  but  refuses  to  join  as  complainant,  he  may 
be  impleaded  as  a  defendant,  and  in  such  case  would  be  bound 
by  the  decree  obtained;^  but  if  one  is  so  impleaded  as  defend- 
ant, the  complainant  should  set  forth  in  the  bill  of  complaint 
by  proper  allegations  the  reason  for  so  impleading  him;  and  if 
the  bill  does  not  contain  such  allegations  it  has  been  held  sub- 
ject to  a  demurrer,  but  the  court  may,  as  it  is  a  defect  of  form 
rather  than  substance,  allow  the  complainant  to  amend  by 
making  the  party  a  co-complainant.^ 

In  Sadler  v.  Taylor '  the  court  say :  "  At  law  persons  jointly 
interested  in  the  object  of  the  suit  must  stand  on  the  same  side 
of  the  case  upon  the  record;  but  in  equity,  while  it  is  proper  so 
to  arrange  the  parties,  it  is  generally  held  to  be  sufficient  if  all 
persons  interested  in  the  subject-matter  of  the  cause  be  made 
parties  thereto,  either  as  plaintiffs  or  defendants.  In  equity  all 
parties  to  the  suit  are,  or  may  be,  actors  therein,  without  re- 
gard to  the  formal  positions  on  the  record,  and  ordinarily  it  is 
a  matter  of  little  consequence  whether  a  party  appears  as  a 
complainant  or  defendant,  for  the  court  can  make  such  decree 
as  the  exigencies  of  the  case  may  require,  decreeing  for  or 
against  one  or  more  of  the  several  plaintiffs  and  for  or  against 
one  or  more  of  the  several  defendants.  '  In  equity  it  is  suffi- 
cient that  all  the  parties  in  interest  are  before  the  court  as 
plaintiffs  or  as  defendants;  and  they  need  not,  as  at  law,  in 
such  case,  be  on  opposite  sides  of  the  record.'"* 

§  52.  Real  parties  in  interest. —  It  is  a  general  rule  in 
equity  pleading  that  the  parties  to  the  bill  shall  be  the  real 
parties  in  interest  in  the  object  of  the  suit.  This  applies  in  de- 
termining who  shall  be  complainants;  a  person  cannot  file  a 
bill  of  complaint  who  has  no  actual  interest  in  the  controversy; 

was    with    the    defendants,   should  only  decree  as  between  parties  to  the 

undertake  to  delay,  harass  or  impede  suit,  but  in  equity  it  is  not  essential, 

the  orderly  progress  of  the  cause,  the  as  at  law,  that  the  parties  litigant 

complainants  might  renew  a  motion  should  all  be  on  opposite  sides  of  the 

to  make  such  party  a  defendant  case.     Piatt  v,  Oliver,  3  McLean,  27. 

1  Waldo  V.  Waldo,  52  Mich.  91.  The  position   of  the  parties  on  the 

^  Morse  v.  Hovey,  9  Paige,  197.  record  as  plaintiffs  or  defendants  is 

349W.  Va.  104,  38  S.  E.  583;  Mo-  immaterial  — allareactors.   Fleming 

Arthur  v.  Scott,  113  U.  S.  340,  391.  v.  Holt,  12  W.  Va.  143;  Tavenner  v. 

■»  1  Story,  Eq.  Jur.  630.  The  court  can  Barrett,  21  W.  Va.  Gj6. 


g  53.]  PARTIES    TO    THE    BILL.  61 

as,  for  example,  it  has  been  held  that  an  assignor  cannot  file  a 
bill  in  tlie  interest  of  the  assignee.  "It  is  a  well-recognized 
rule  that  in  equity  the  party  having  the  beneficial  interest  in 
the  subject-matter  of  the  suit  must  sue  in  his  own  name  for  any 
invasion  of  his  rights  in  respect  thereto,  although  the  legal  title 
ma}'  be  in  another.  It  is  also  well  settled  that  no  one,  in  the 
absence  of  some  statute  authorizing  it,  can  maintain  a  suit  in 
chancery  with  respect  to  real  estate  to  which  he  has  neither 
the  legal  nor  equitable  title.'" 

In  Fenn  v.  Ilearon  ^  it  was  held  that  the  assignor  of  a  debt 
held  merely  a  barren  legal  title,  and  that  the  beneficial  interest 
was  in  the  assignee,  who  must  be  made  a  party  to  the  suit. 
"Equity  deals  with  real  parties  in  interest,  andif  they  are  not 
before  the  court  no  proper  decree  can  be  made."  And  so  it  is 
held  that  an  ao-ent  cannot  brin"-  his  suit  on  ana^'reement  made 
by  him  for  and  on  behalf  of  his  principal  and  alleged  so  to  be 
at  the  execution  of  it,  for  he  is  not  the  real  party  in  interest. 
And  so  the  stockholders  of  a  corporation,  although  they  are 
interested  parties  by  reason  of  being  the  owners  of  the  stock, 
are  not  proper  parties  complainant,  but  the  bill  should  be  tiled 
by  the  corporation.  The  president  of  a  corporation  cannot 
bring  a  suit  in  his  own  name  on  an  agreement  of  the  corpora- 
tion signed  by  him  as  president  and  entered  into  on  behalf  of 
the  corporation,  for  it  is  not  the  contract  of  the  president,  but 
of  the  corporation.  And  where  the  name  of  a  trustee  is  used, 
the  cestui  que  trust  must  be  made  complainant  with  him.' 

§  53.  One  for  all  or  a  part  for  luaiiy. —  We  have  already 
discussed  the  exception  which  allows  the  court  of  equity  to 
proceed  where  the  parties  in  interest  are  numerous  and  not  all 
before  the  court,  but  sufficient  of  the  number  represented  to 
insure  to  the  parties  in  interest  a  fair  and  complete  hearing  of 
the  cause.^     Akin  to  this  exception,  or  rule,  is  the  rule  that 

iSriiitli  V.  Brittenham,  100  111.  540.  court  the  suit  is  properly  hought  in 

549,  citini^  Bowies  v.  McAllen,  16  111.  the  names  of  the  real  parties  in   in- 

30.  terest;  as  the  assignee  of  a  chose  in 

294  Va.  773;  Kane  v.  Mann.  2  Va.  action  is  not  permitteil  to  file  a  bill 

Law   Re'4.   443;  C'astleman   v.  Berry  in  the  nanieof  a  mere  nominal  party. "^ 

et  al.,  8(5  Va.  604;  Campbell  v.  Ship-  »  Nichols  v.  Williams,  22  N.  J.  Eq. 

man,  87  Va.  6J5;  Field  v.  Mighee,  5  63. 

Prti}i:e   N.  Y.).  539;  Rogers  v.  Traders'  *  Ante,  §  49,  subd.  1. 
Mfg.  Co.. 6  Paige.  5^3.  59S.      "in  this 


62 


FAKTIES   TO    THE    BILL. 


[§53. 


permits  one  of  several  interested  parties,  or  a  part  of  a  large 
class  who  stand  in  the  same  relation  and  whose  interests  are 
identical,  to  bring  a  suit  in  equity  for  themselves  and  others 
not  made  parties  to  the  bill.  It  is  a  well  settled  rule  that  one 
of  a  class,  or  a  few  of  many  persons  having  one  common  right 
or  interest,  the  operation  or  protection  of  which  will  be  for 
the  common  benefit  of  all  and  can  in  nowise  injure  any  of  the 
parties,  may  institute  a  suit  in  equity  for  the  common  interest 
without  making  all  persons,  alike  interested  with  them,  parties 
to  the  suit.^  But  in  such  cases  it  must  clearly  appear  that  a 
full  and  complete  decree  can  be  made  as  between  the  parties 
before  the  court,  and  that  without  substantial  injury  to  third 
persons.  The  interests  of  the  parties  must  be  common  and  not 
adverse  or  distinct,  and  if  they  are  not,  then  this  exception  to 
the  general  rule  that  all  must  be  made  parties  cannot  be  in- 
voked; for  every  distinct  or  adverse  interest  in  a  controversy 
must  be  represented  by  the  parties  claiming  such  interests.^ 


1  In  Hale  et  al.  v.  Hale  et  al,  146 
111.  227,  257,  the  courtsay:  "A famil- 
iar illustration  may  be  found  in  cases 
where  the  parties  are  so  numerous 
that  it  is  inconvenient  or  impossible 
to  bring  them  all  before  the  court, 
and  it  appears  that  they  all  stand  in 
the  same  situation  and  have  one 
common  right  or  one  common  in- 
terest, the  operation  and  protection 
of  which  will  be  for  the  common 
benefit  of  all,  and  cannot  be  to  the 
injury  of  any.  Under  such  circum- 
stances the  bill  is  permitted  to  be 
filed  by  a  few  on  behalf  of  them- 
selves and  all  others,  or  against  a 
few,  and  yet  bind  the  rights  and  in- 
terests of  all  others."  Smith  v.  Will- 
iams, 116  Mass.  510;  Hills  v.  Putnam 
«t  al..  152  Mass.  123.  In  Libby  v. 
Norris,  142  Mass.  246,  248,  the  court 
say:  "The  bill  is  brought  by  the 
plaintiff  on  behalf  of  himself  and 
numerous  other  creditors  to  enforce 
a  trust.  The  interest  of  all  the 
creditors  in  the  question  to  be  tried 
is  the  same.  It  is  well  settled  that 
such  a  bill  may  properly  be  brought, 


or  at  least  that  it  is  within  the  dis- 
cretion of  the  court  to  entertain  it." 
Sears  v.  Hardy,  120  Mass.  524;  Bir- 
mingham V.  Gallagher,  112  Mass. 
190;  Bryant  v.  Russell,  23  Pick. 
(Mass.)  508;  Story,  Eq.  PL,  sec.  102; 
Stevenson  et  aL  v.  Austin,  3  Mete. 
474;  Stimson  v.  Lewis,  36  Vt.  91,  94. 
"The  practice  is  common  in  our 
courts,  when  the  persons  in  interest 
are  numerous,  to  allow  parties  plaint- 
iffs to  bring  a  bill  in  behalf  of  them- 
selves and  others  interested  without 
making  such  others  parties,  there 
being  a  sufficient  number  before  the 
court  to  represent  the  rights  of  all. 
The  rule  seems  to  be  the  same,  sub- 
stantially, in  regard  to  the  defend- 
ants." Daniell,  Ch.  PI.  &  Prac.  320. 
The  same  rule  applies  to  cases  where 
there  are  many  persons  defendants 
belonging  to  voluntary  associations, 
against  whom  the  suit  is  brouglit,  as 
to  cases  where  the  bill  is  brought  by 
some  proprietors  as  plaintiffs  in  be- 
half of  all. 

2  Hudson  et  al.  v.  Eisenmayer  et  al, 
79  Tex.  401 ;  Cunningham  v.  Pell,  5 


§  54.]  PARTIES    TO    THE    BILL.  63 

Eut  where  it  is  sought  to  take  advantage  of  this  exception  to 
the  general  rule,  the  facts  relied  upon  by  the  complainant  for 
thus  bringing  the  action  must  be  clearly  stated  in  the  bill  of 
complaint  with  proper  allegations. 

§  54.  Infants  as  complainants,—  Infants  belong  to  that 
class  that  are  partially  incapacitated  to  bring  suits  in  their 
own  name.  When  it  is  necessary  to  seek  redress  on  behalf  of 
an  infant  in  a  court  of  equity,  the  bill  should  be  filed  and  the 
suit  conducted  in  the  name  of  and  by  his  "  next  friend,"  as  the 
infant  is  not  permitted  to  prosecute  the  case  m  his  own  name, 
for  the  reason  that  he  cannot  become  liable  for  costs;  nor  is 
he  considered  to  possess  sufficient  discretion  to  prosecute  his 
cause;  and  if  a  bill  should  be  filed  without  appointing  a  next 
friend,  the  court,  on  its  own  motion,  would  appoint  one,  for 
the  court  of  equity  is  considered  to  have  an  especial  care  of  this 
class  of  persons.  It  is  said  that  infants  are  the  wards  of  the 
chancery  court.'  The  person  appointed  as  "  next  friend  "  is 
usually  the  nearest  relative  of  the  infant,  if  such  person  is  suit- 
able and  does  not  possess  adverse  interests,  for,  because  of  his 
relation  to  the  infant,  he  naturally  desires  to  protect  his  inter- 
ests and  redress  his  wrongs;  for  this  reason  such  a  person  is 
called  his  "  next  friend,"  often  referred  to  as  prochein  ami.  If 
for  any  reason  such  near  relative  does  not  or  cannot  so  act  be- 
cause of  adverse  interests,  or  for  any  reason  refuses  or  neglects 
so  to  do,  the  court  may  appoint  some  other  person.  Whoever 
acts  in  such  capacity  is  styled  in  the  bill  the  "  next  friend  "  of 
the  infant.  If  the  infant  has  a  guardian,  he  may  sue  by  his 
guardian  or  by  his  "  next  friend,"  but  must  always  defend,  as 
we  shall  see,  by  guardian.  The  guardian  who  thus  appears  is 
called  a  guardian  ad  liiern. 

This  is  regulated  by  rule  in  the  United  States  courts.''     The 
"  next  friend  "  is  held  responsible  by  the  court  for  the  com- 

Paige  (N.  Y.),  607;  Champlin  et  al.  v.  but  must  be  established  by  proof. 

Champlin  et  al.,  4  Edw.  Ch.  (N.  Y.)  Claxton  v.  Claxton,  56  Mich.  557. 

228.  2u.  s.   Eq.  Rule  87.     ^'Guardians 

1  Westbrooke   v.  ComstoGk,  Walk,  ad  litem  to  defend  a  suit  may  be  ap- 

Ch.    Rep.    (Mich.)   314;    Sheahan    v.  pointed    by    the   court,   or   by   any 

Judge  of  Wayne  Circuit.  42  Mich.  69.  judge  thereof,  for  infants  or  other 

Where  the  interests  of  the  infant  persons  who  are  under  guardianship, 

are  involved,  nothing  can  be  estab-  or   otherwise   incapable   to  sue   for 

lished  by  admissions  or  stipulations  themselves.     All  infants  and  other 


64 


PARTIES    TO    THE    BILL. 


[§55. 


menceraent  and  conduct  of  the  case,  and  if  it  is  improperly  in- 
stituted, or  wantonly  and  wrongfully  conducted,  or  the  inter- 
ests of  the  infant  neglected,  he  will  be  liable  for  the  costs  and 
will  also  be  liable  to  the  censure  of  the  court,^ 

§  55.  Married  women  as  plaintiffs. —  Originally,  a  married 
woman  could  not  sue  in  her  own  name  but  must  join  with  her 
husband,  for  the  reason  that  she  was  deemed  to  be  under  his 
protection  and  that  a  suit  respecting  her  rights  or  interest 
should  be  with  his  assent  and  co-operation;  but  if  there  were 
reasons  why  she  should  not  so  join,  the  court  would  allow  her 
to  bring  the  action  in  her  own  name;  as,  for  example,  in  case 
the  husband  had  deserted  her,  or  was  legally  dead;  or  where 
the  controversy  was  with  reference  to  her  own  separate  prop- 
erty; or  where  she  was  seeking  relief  against  her  husband. 
"When  the  suit  concerned  her  own  separate  property  she  was 
obliged  to  institute  the  suit  by  her  "next  friend;"  it  was  her 
privilege,  however,  to  choose  the  person  who  should  so  act.^ 
In  most  of  the  states  of  the  Union,  however,  the  married 
woman's  status  with  reference  to  her  separate  property  is  by 


persons  so  incapable  may  sue  by 
their  guardians,  if  any,  or  by  their 
procfiem  ami:  subject,  however,  to 
such  orders  as  the  court  may  direct 
for  tlie  protection  of  infants  and 
otlier  pertions." 

1  Story.  Eq.  PI.,  sees.  57,  59;  1  Black- 
stone,  463,  464.  "An  infant  cannot 
be  sued  hut  under  the  protection, 
and  joining  tlie  name,  of  his  guardian ; 
for  he  is  to  defend  him  against  all 
attacks  as  well  by  law  as  otherwise; 
but  he  may  sue  eitiier  by  his  guardian, 
or  prvctiein  ami.  his  next  friend  who 
is  not  his  guardian.  This  prochein 
ami  may  be  any  person  who  will 
undertake  the  infant's  cause,  and  it 
frequently  happens  that  an  infant, 
by  \uii  prochein  avii,  institutes  a  suit 
in  equity  against  a  fraudulent  guard- 
ian." In  Bradwell  v.  Weeks,  1  Johns. 
Ch.  325.  t!.e  court  say:  "The  plaint- 
iffs, being  infants,  cannot  act  by 
solicitor  in  this  instance  more  than 
in  the  other  proceedings  in  the  suit. 


The  suit  was  commenced  and  con- 
ducted for  them  by  their  guardian 
and  next  friend,  and  no  reason  ap- 
pears why  the  guardian  is  dropped 
in  this  application.  It  is  against  the 
course  and  order  of  the  court,  and 
not  conducive  to  the  security  of  the 
rights  of  the  parties.  Tlie  infants 
should  act  under  the  advice  and  dis- 
cretion of  their  guardian  or  next 
friend,  and  the  opposite  party  has,  in 
such  case,  a  responsible  person  for 
costs." 

^Bein  v.  Heath,  6  Row.  (U.  S.)  228, 
240.  "Where  the  wife  complains  of 
the  husband  and  asks  reMet  against 
him  she  must  use  the  name  of  .some 
other  person  in  prosecuting  the  suit; 
but  where  the  acts  of  the  husband 
are  not  complained  of,  he  would  seem 
to  be  the  most  suitable  person  to 
unite  with  her  in  the  suit.  This  is  a 
matter  of  practice  within  the  discre- 
tion of  the  court."  Story,  Eq.  PI., 
S'^c.  61. 


§56.] 


PARTIES    TO    THE    BILL.  65 


statute  the  same  as  though  she  were  sole,  and  she  is  permitted 
to  institute  suits  and  prosecute  them  for  protection  and  relief 
concerning  such  property,  and  in  such  case  she  is  noi  obliged 
to  prosecute  by  "next  friend,"  but  may  proceed  in  her  own 
individual  name.'  The  court  of  chancery  for  many  purposes 
treats  the  husband  and  wife  as  distinct  persons  having  dis- 
tinct and  separate  interests;  and  so  where  a  husband  abandoned 
h=s  family  and  left  the  country  to  avoid  arrest  for  a  confessed 
crime,  the  court  held  that  the  wife,  for  the  purpose  of  suing 
and  being  sued,  would  be  regarded  as  a  feme  sole?  This,  no 
doubt,  would  be  the  holding  in  most  of  the  states  of  the  Union, 
the  tendency  being  to  give  to  the  married  woman  greater 
privileges  as  a  party  to  litigation. 

§  56.  Idiots,  lunatics  and  weak-minded  persons. —  For- 
merly idiots  and  lunatics  were  not  permitted  to  sue  in  th6  courts, 
but  this  is  no  longer  the  rule.  At  the  present  time  a  lunatic, 
an  idiot,  or  insane  person  is  entitled  to  have  his  rights  adjudi- 
cated in  the  courts  the  same  as  any  other  person,  differing  only 
in  the  manner  of  procedure.  In  England  the  care  and  custody 
of  the  estates  of  these  unfortunates  belonged  to  the  crown,  and 
by  the  government  was  committed  to  the  committee  having 
special  care  of  such  persons  and  their  estates,  and  suits  in  their 
behalf  were  instituted  and  conducted  by  such  committee.  In 
many  of  the  states  of  the  United  States  the  same  proceeding 
is  had,  but  usually,  in  this  country,  suits  for  idiots,  lunatics  and 
weak-minded  persons  are  commenced  in  their  name  by  their 
next  friend;  but  in  some  cases  suits  are  commenced  and  man- 

Un  New  York  she  was  held  to  sec.  1368;  Arundel  v.  Phi'i  ps,  10  Ves. 
have  powei- to  sue  in  equity  as  if  she  Jr.  144,  149;  Livingston  v.  Living- 
were  so  e.  In  Markham  V.  Markham,  ston,  2  Johns.  Ch.  537.  Tlie  court 
4  Mich.  305,  the  suit  was  com-  further  held  that  the  act  securing 
menced  against  the  husband;  tlie  to  a  married  woman  all  her  real 
court  say:  "The  bill  shows  a  clear  and  personal  estate  to  the  same 
equitable  right  in  the  complainant  extent  as  though  she  were  unmar- 
to  recover  the  money  in  question  for  ried,  conferred  upon  her  the  privi- 
her  separate  use.  A  court  of  chan-  lege  of  bringing  suits  in  lier  own 
eery,  for  many  purposes,  treats  the  name.  Clii:d  v.  Emerson.  lOJ  Mich, 
husband  and  wife  as  distinct  per-  38;  Berger  v.  Jacobs,  Jl  Mich.  :il5; 
sons,  capal>ie  (in  a  limited  sense  of  Leonard  v.  Pope,  27  Mich.  14"). 
contracting  with  each  other,  an  f  ■^Sanborn  v.  Sanborn,  104  Mich, 
having  separate  estates,  debts  and  IbO. 
interests."  Citing  2  Story,  Eq.  Jur., 
5 


06 


PAKTIEB   TO    THE    BILL. 


[§^7 


)< 


aged  by  guardians,  who  have  been  appointed  to  take  charge  of 
their  affairs  generally.  It  is  usually  necessary  that  the  person 
claimed  to  be  an  idiot,  lunatic  or  weak-minded  person  should 
bo  so  adjudged  by  a  court  of  competent  jurisdiction;  and 
where  a  party  has  not  been  so  adjudged,  and  no  guardian  or 
committee  appointed  for  him,  the  suit  may  be  brought  in  the 
name  of  the  alleged  incompetent  person.  When,  however, 
one  of  this  unfortunate  class  is  known  to  be  incompetent,  a 
suit  may  be  brought  in  his  name  by  his  next  friend  duly  ap- 
pointed; and  when  a  case  is  brought  by  committee  or  guardian 
who  is  known  to  be  adverse  in  interest,  the  court  will  appoint 
some  other  person  as  guardian  ad  litem,  or  as  next  friend,  and 
in  some  instances  the  attorney-general  of  the  state  has  repre- 
sented the  party.' 

§  57.  Parties  defendant.— All  persons,  natural  or  artificial, 
having  a  legal  entity,  unless  exempt  by  law  from  such  pro- 


iln  Plympton  v.  Hall  et  al,  55 
Minn.  23,  the  court  say:  "Persons 
incompetent  to  protect  themselves, 
from  age  or  weakness  of  mind,  are 
entitled  to  come  under  the  protection 
of  the  court,  and  proceedings  will  be 
instituted  under  its  direction,  as  was 
done  in  this  case."  Citing  Malin  v. 
Malin,  2  Johns.  Ch.  338;  Denny  v. 
Denny,  8  Allen.  313. 

A  lunatic  is  not  supposed  to  be 
able,  without  the  assistance  of  others, 
to  know  what  steps  may  be  neces- 
sary to  protect  his  estate.  Suits  in 
liis  behalf  are  usually  instituted  in 
his  name,  but  as  he  is  a  person  in- 
capable in  law  of  taking  any  steps  on 
his  own  account,  he  sues  by  the  com- 
mittee of  his  estate,  if  any,  or  if 
none,  by  his  next  friend,  who  is  re- 
sponsible for  the  conduct  of  the  suit. 
1  Daniel!,  Ch.  Pr.,  sec.  83;  Story,  Eq. 
PI.,  sec.  66. 

In  Beall  v.  Smith,  L.  R.  9  Ch. 
App.  91,  the  general  rule  in  chancery 
is  thus  stated:  Where  there  is  a 
person  of  unsound  mind,  and  there- 
fore incapable  of  invoking  the  pro- 
tection of  the  court,  that  protection 


may  be  invoked,  in  proper  cases,  and 
to  the  extent  proper  in  his  behalf, 
by  any  person  as  his  next  friend. 
But  every  person  so  constituting 
himself,  officiously,  the  guardian  of 
a  person  of  unsound  mind,  does  so  at 
his  own  risk,  and  he  must  be  pre- 
pared to  vindicate  the  propriety  of 
the  proceedings,  if  they  are  called  in 
question.  Nelson  v.  Duncombe,  9 
Beav.  231;  Light  v.  Light,  25  Beav. 
348;  Whetstone  v.  Whetstone,  75 
Ala.  495. 

The  remark  of  the  trial  judge  in 
Halfhide  ^.  Robinson,  L.  R  9  Ch. 
App.  '6TS.  that  a  bill  cannot  be  so 
filed  by  a  next  friend,  is  not  sanc- 
tioned by  other  or  later  cases.  In 
Jones  V.  Lloyd,  L.  R  18  Eq.  375.  it  is 
said  that  everybody  knows  it  takes 
some  time  to  make  a  lunatic  by  in- 
quisition, and  his  family  sometimes 
hesitate  about  making  him  such.  Is 
it  to  be  tolerated  that  any  one  may 
injure  him  or  his  property  without 
there  being  any  person  to  restrain 
such  injury  ?  Rock  v.  Slade,  7  Dowl. 
23. 


8   57.1  PARTIES    TO    THE    BILL.  0« 

cedure,  may  be  made  defendants  to  a  bill  in  equity  Every 
suit  in  equity  contemplates  the  settlement  of  a  controversy  be- 
tween the  parties  interested.  Naturally,  certain  of  the  parties 
in  the  controversy  seeking  the  decree  of  the  court  are  com- 
plainants, or  parties  plaintiff,  while  certain  others  who  oppose 
their  interests  are  as  naturally  parties  defendant;  and  so  it 
may  be  said  that  persons  whose  interests  are  adverse  to  the 
interests  of  the  complainant,  and  who  oppose  and  deny  the 
right  to  the  remedy  and  relief  which  the  complainant  seeks 
by  his  bill  in  equity,  should  be  made  defendants  in  the  suit. 

We  have  already  seen  that  there  are  those  connected  w4th 
the  controversy  who  are  interested  in  the  subject-matter  and 
the  object  of  the  suit;  whose  interests  are  the  same  as  the  in- 
terests of  the  complainant,  and  in  no  way  adverse  to  his  con- 
tention, but  who,  refusing  to  join  in  the  bill,  are  made  defend- 
ants; they  who  desire  the  same  disposition  of  the  case;  the 
same  decree.     If  only  such  persons  are  made  defendants  it 
would  be  vain  and  meaningless  to  proceed  with  a  case,  and  a 
court  of  equity  would  refuse  to  do  so,  but  would  require  that 
the  defendants,  or  some  of  them,  have  an  adverse  interest  to 
the  plaintiff's  claim;  that  something  requiring  the  interven- 
tion of  the  tribunal  to  settle  should  be  presented,  and  not  a 
mere  statement  or  claim  of  rights  that  all  parties  agree  upon, 
and  about  which  there  is  no  difference  or  contention ;  for  if 
there  is  no  disagreement  there  is  nothing  for  the  court  to  settle 
and   no  necessity  for  litigation.     But  the  settlement  of  the 
whole  controversy  is  sought;  a  decree  adjudging  and  defining 
all  interests  joined  in  the  litigation;  so  all  persons  claiming 
adversely  to  the  complainant,  and  all  who  are  necessary  parties 
to  a  complete  determination  of  the  litigation,  must  be  made  de- 
fendants, if  they  are  not  already  properly  joined  as  complain- 
ants.^    The  necessity  that  all  interested  parties  should  be  sub- 

1  Bradley  v.  Gilbert,  155  111.  154;  stream,  it  was  held  that  those  par- 
Barney  V.  Latham,  103  U.  S.  205,  ties  were  naturally  united  as  re- 
214:  Bengley  v.  Wheeler,  45  Mich,  spondents  who  claimed  the  right  to 
4g3_  divert   the   water    notwithstanding 

In  Union  Mill  &  Mining  Co.  v.  the  complainant's  contention.  The 
Dangberg  (C.  C.  A.  1897),  81  Fed.  73,  court  say:  "It  is  true  that  the  re- 
where  the  controversy  was  to  deter-  spondents  deny  that  they  have  en- 
mine  the  riglits  of  parties  to  a  tered  into  any  combination  to  divert 
-specific  quantity  of  the  water  of  a  any  of  the   waters  of  the  river  to 


PAKTIKS   TO   THE    BILL. 


[§58. 


JGcted  to  the  jurisiliction  of  the  court  furnishes  the  reason  for 
the  rule. 

§  58.  Some  exceptions. —  To  this  general  rule  as  to  who  can 
be  made  defendants,  there  are  some  exceptions  that  shouhl  be 
noted. 

First.  It  has  been  held  to  be  a  general  rule,  "operating  by 
way  of  exception  on  the  former,  that  no  one  need  be  made  a 
party  against  whom,  if  brought  to  a  hearing,  the  plaintilf  can 
have  no  decree."  ^ 

Second.  As  a  result  of  the  above  exception,  which  is  a  gen- 
eral rule,  it  would  follow  that  the  government  of  the  United 
States  cannot,  without  its  consent,  be  made  a  defendant;  even 
if  the  state  within  which  the  court  is  sitting  and  where  the 
facts  originated  permits  such  a  proceeding. 

It  was  held  in  Carr  v.  United  States^  to  be  "a  fundamental 
principle  that  the  government  cannot  be  sued  except  by  its  own 
consent;  and  certainly  no  state  can  pass  a  law,  which  would 

complainant's  injury  or  damage,  or  property  of  the  corporations  named, 
that  they  jointly  or  in  common  di-  transacting  tlieir  business  and  using 
vert  or  use  said  water,  and  allege  their  credit,  by  which  the  rights  and 
that  they  claim  individual,  distinct  interests  of  all  the  other  part  es  were 
and  separate  rights  independent  of  atfected.  In  this  there  is  one  com- 
eaoh  other;  but  the  pleadings  and  mon  point  of  litigation.  That  being 
the  proofs,  without  any  conflict,  dis-  so,  they  were  all  proper  parti  s.  .  .  . 
tinctiy  show  that  the  result  of  re-  It  clearly  appears,  from  the  allega- 
Bpondents'  acts  are  such  as  to  make  tions  of  the  complaint,  that  the  nat- 
their    individual    diversion    of    the    ural  persons   named  as   defendants 

were  directors  and  officers  of  the 
four  corporations  mentioned,  and 
that  they  so  mismanaged  tlie  busi- 
ness of  the  companies  as  to  cause 
the  ptaintiflfs,  who  were  stockhold- 
ers, great  loss,  and  that  they  will  sus- 
tain further  loss  unless  a  receiver  is 
appointed." 

1  Van  Reimsdyk  v.  Kane  et  al.,  28 
Fed.  Cases  C.  &  D.  Ct.  16,871. 

2  98  U.  S.  433,  437.  "  It  is  conceded 
in  The  Siren  (7  Wall.  152)  and  in  The 
Davis  (10  id.  15)  that  without  an  act 
of  congress  no  direct  proceeding  can 
be  instituted  against  the  govern- 
ment or  its  property.  And  in  the 
latter  case  it  is  justly  observed  that 
'tiie  possession  of  the  government 
can  oniy  exist  through  its  officers; 
using  that  phrase   in   the  sense  of 


water  injurious  to  complainant's 
rights,  if  the  complainant  is  entitled 
to  any  prior  rights  to  the  water. 
Their  claims  are  of  the  same  com- 
mon character,  in  that  they  are  ad- 
verse to  complainant.  They  are 
therefore  all  properly  united  as  re- 
spondents, because  they  all  divert 
water  from  a  common  source,  the 
Carson  river,  above  the  mills,  and 
cla  m  the  riglit  to  divert  it  as  against 
the  comi)lainant.  These  conflicting 
rights,  whatever  they  may  be,  can 
be  determined  by  one  suit.'" 

Stevens  v.  Land,  etc.  Co.,  14  Utah, 
232.  47  Pac.  81.  "The  gist  of  the  ac- 
tion, as  set  forth  in  the  complaint,  is 
the  fraud  and  mismanagement  of 
defen  lants.  ...  in  conlroiling, 
disposing  of,  and  appropriating,  the 


a  5S,"|  PARTIES   TO   THE    BILL.  69 

have  any  validity,  for  making  the  government  suable  in  its 
courts;"    the    court    further  observing:     "In   some   cases  it 
might  not  be  apparent  until  after  suit  brought  that  the  posses- 
sion attempted  to    be  assailed  was  that  of  the  government; 
but  when  this   is    made   apparent    by   the    pleadings,  or  the 
proofs,  the  jurisdiction  of  the  court  ought  to  cease.     Other- 
wise the  government  could  always  be  compelled  to  come  into 
court  and  litigate  with  private  parties  in  defense  of  its  prop- 
erty."    :No  direct   proceeding   can   be  instituted  against  the 
government  or  its  property  without  an  act  of  congress;  but 
when  the  government  institutes  the  proceeding,  it  waives  its 
privilege  and  will  stand  in  the  same  relation  as  an  individual 
in  the  court,  except  that  it  will  not  be  liable  for  costs,  and  will 
be  exempt  from  any  affirmative  relief  against  it  beyond  the 
demand  or  property  in  controversy.     Mr.  Justice  Field  in  de- 
livering the  opinion  in  The  Siren '  said:   «  It  is  a  familiar  doc- 
trine o?  the  common  law  that  the  sovereign  cannot  be  sued  in 
his  own  courts  without  his  consent.     The  doctrine  rests  upon 
reasons  of  public  policy;  the  inconvenience  and  danger  which 
would  follow  from  any  different  rule.     It  is  obvious  that  the 
public  service  would  be  hindered,  and  the  public  safety  en- 
dangered, if  the  supreme  authority  could  be  subjected  to  suit 
at  the  instance  of  every  citizen,  and  consequently  controlled 
in  the  use  and  disposition  of  the  means  required  for  the  proper 
administration  of  the  government.     The  exemption  from  di- 
rect suit  is,  therefore,  without  exception.     This  doctrine  of  the 
common  law  is  equally  applicable  to  the  supreme  authority  of 
the  nation,  the  United  States.     They  cannot  be  subjected  to 
legal  proceedings  at  law  or  in  equity  without  their  consent; 
and  whoever  institutes  such  proceedings  must  bring  his  case 
within  the  authority  of  some  act  of  congress.     Such  is  the 
language  of  this  court  in  United  States  v.  Clarke.'' 

Third.  It  is  a  doctrine  generally  prevailing  in  the  states  of 
the  Union  that  a  state  cannot  be  sued  in  its  own  courts  except 
as  it  authorizes  the  proceeding.  In  Supervisors  v.  Auditor- 
General'  Mr.  Justice  Campbell  for  the  court  said:  "There 
can  be  no  doubt  of  the  power  of  the  state  legislature  to  refuse 

any  person  charged  on  behalf  of  the  1 7  Wall.  (U.  S.)  153. 

government  with  the  control  of  the  2  68  Mich.  659;  Auditor-General  v. 

prop- rty,   coupled  with  the  actual  Supervisors,  73  Mich.  183. 
possession.' " 


70  PARTIES    TO    THE    BILL.  [§  59. 

to  perform  even  a  contract,  and,  where  it  forbids  the  applica- 
tion of  money  in  the  state  treasury  to  any  particidar  use,  no 
court  can  interfere.  The  state  is  not  liable  to  suit  except  as  it 
authorizes  a  suit,  and  this  authority  can  be  revoked  at  pleasure. 
This  is  such  elementary  doctrine  that  it  only  needs  statement." 

Fourth.  Foreign  states,  or  their  sovereigns,  are  not  suable 
even  though  found  within  the  dominion  of  a  foreign  country. 
The  comity  existing  among  nations  would  not  permit  such  a 
proceeding. 

Fifth.  A  fifth  exception  is  found  in  the  provisions  of  the 
eleventh  amendment  to  the  constitution  of  the  United  States. 
"The  judicial  power  of  the  United  States  shall  not  be  con- 
strued to  extend  to  any  suit  in  law  or  equity  commenced  or 
prosecuted  against  one  of  the  United  States,  by  citizens  of 
another  state,  or  by  citizens  or  subjects  of  any  foreign  state." ' 

§  5'.).  Persons  partially  incapacitated. — (1)  Married  women: 
The  same  reasons  which  are  deemed  to  incapacitate  a  mar- 
ried woman  to  ijccome  a  party  plaintiff  exist  as  to  her  being 
made  a  party  defendant.  Ordinarily  a  married  woman  at 
common  law  must  be  joined  with  her  husband,  and  in  equity 
their  answers  must  be  joined,  but  there  were  exceptions  to 
this  rule.  Where  the  husband  proceeded  in  equity  and  made 
his  wife  a  defendant,  he  was  said  to  have  waived  the  right  to 
be  joined  with  her,  and  to  elect  that  she  should,  as  to  the  pro- 
ceeding instituted,  be  Sifeme  sole.  And  so  where  the  husband 
was  banished  beyond  the  realm,  or  was  an  exile;  or,  where 
her  own  separate  property  was  involved  and  her  husband  was 
in  no  way  adverse,  she  might  appear  and  answer  as  sl  feme 
sole.  And  the  same  rules  apply  when  it  is  necessary  that  she 
should  be  made  a  defendant,  although  her  interests  might  be 
with  the  complainant,  she  refusing  to  join  the  complainant.^ 

(2)  Infants  may  be  made  defendants,  but  must  appear  and 
defend  by  guardian  ad  litem.  As  we  have  seen,  the  suits  are 
commenced  for  them  and  in  their  behalf  by  next  friend,  but 
when  they  appear  as  defendants  they  appear  by  guardian  ad 
litem  (that  is,  a  guardian  appointed  during  the  pendency  of 

1  Cohens  v.  Virginia,  8  Wheat  (U.  ject  in  Michigan,  a  wife's  bill  again.st 

S.)  264.  405;  Osborn  v.  Bank,  9  Wheat,  her  husband  must  have  been  by  next 

(U.  S.)  740.  friend.     Peltier  v.  Peltier,  Har.  Ch. 

*  Prior  to  a  statute  upon  the  sub-  19. 


g  60.]  PARTIES    TO   THE    BILL.  71 

the  litigation),  and  sliould  a  suit  be  commenced,  and  the  in- 
fant appear  in  court  without  such  guardian,  the  court,  upon  its 
own  motion,  will  appoint  one.^ 

(3)  Insane  persons  and  idiots  may  commence  an  action  by 
next  friend,  and  in  some  instances  by  guardian;  they  should 
defend  by  a  guardian  ad  litem,  and  the  court  in  this  case,  as  in 
the  case  of  infants,  will  upon  its  own  motion,  if  necessary, 
make  such  an  appointment,  and  will  not  allow  their  defense 
to  proceed  without  appointing  a  guardian  to  attend  to  it.^ 

§  GO.  Joinder,  misjoinder,  non-joinder  of  complainants. — 
In  a  general  way  this  subject  has  already  been  discussed  in 
what  has  been  said  as  to  who  should  be  parties  complainant,' 
but  an  important  consideration  of  the  subject  still  remains,  for 
the  pleader  must  determine  who  can  properly  be  joined  as 
parties  comphiinant,  who  must  not  be  so  joined,  and  when  a 
failure  to  join  certain  persons,  because  of  their  interest  in  the 
subject-matter  of  the  suit,  will  result  in  a  material  defect  in 
the  pleading;  in  other  words,  he  must  be  able  to  determine 
who  must  be  joined,  who  must  not  be  joined,  and  when  a  non- 
joinder will  result  in  defective  pleading. 

(1)  Joinder  of  complainants:  The  joining  of  several  com- 
plainants in  one  bill  does  not  always  depend  upon  their  joint 
interests  in  the  subject-matter  of  the  suit;  if  the  interests  of  th.^ 
several  persons  are  joint,  they  should  no  doubt  join  as  complain- 
ants, but  often  the  interests  of  the  several  complainants  are  sepa- 
rate, but  the  object  for  which  the  bill  is  filed  is  th"  same.  It  is 
the  joint  interest  in  the  object  of  the  bill  that  tests  the  question 
as  to  whether  they  shall  be  joined  as  complainants.  When  sev- 
eral owners  of  several  lots  abutting  on  a  street  filed  a  bill  to 
restrain  the  construction  of  a  street  railway,  alleging  among 
other  things  that  it  would  be  a  damage  to  their  property,  they 
were  held  to  be  properly  joined,  although  their  interests  in  the 
several  lots,  the  subject  of  the  litigation,  were  several.     The 

1  In  case  of  necessity,  an  infant  Wayne  Circuit  Judge,  42  Mich.  69; 

beneficiar}' can  file  a  petition  in  chan-  Toms  v.  Williams,  41  Mich.  553. 

eery  by  next  friend  for  an  appropri-  2  Story,  Eq.  PL.  sees.  70,  71.   Feeble- 

ation  from  the  income  of  tiie  trust  minded  persons  not  under  guardian 

fund.     Knorr  V.  Millard,  57  Mich.  265.  may  file  bill  by  solicitor.     McDaniel 

The  court  will  guard  the  interest  of  v.  McCoy,  68  Mich.  333. 

theinfant  litigant  whether  protected  ^  Ante,  ^  50. 
by  guardian    or  not.      Sheahan  v. 


72  PARTIES    TO   THE    BILL.  [§  GO. 

court  su}':  "Complainants  are  alike  affected  by  the  construc- 
tion of  this  rocid.  They  were  alike  interested  to  restrain  its 
construction.  Their  interests  were  therefore  common.  There 
was  but  one  object  to  be  accomplished,  and  no  necessity  existed 
for  a  multiplicity  of  suits.  The  defendant  was  not  prejudiced 
by  the  joinder  of  complainants.  We  see  no  objection  to  par- 
ties joining  in  a  suit,  the  sole  purpose  of  which  is  to  obtain  an 
injunction  to  restrain  the  commission  of  an  act  threatened  by 
one  party,  and  alike  injurious  to  the  interests  of  all."^  And 
where  several  persons  having  separate  interests  filed  their  bill, 
the  relief  sought  by  each  involving  the  same  questions,  requir- 
ing the  same  evidence  and  leading  to  the  same  decree,  it  was 
held  that  they  were  properly  joined  as  complainants.^  But 
where  antagonistic  causes  of  action  are  alleged  in  the  samo 
bill  of  complaint  by  several  complainants,  and  the  relief  lor 
which  they  respectively  pray  is  totally  distinct,  requiring  dif- 
ferent evidence  and  leading  to  a  different  decree,  the  com- 
plainants are  improperly  joined.' 

(2)  Misjoinder  of  complainants:  Where  the  complainants  do 
not  have  a  joint  interest  in  the  subject-matter  of  the  suit,  and 
have  no  community  of  interest  in  the  object  of  the  bill,  but 
their  interests  are  separate  and  several,  or  where  their  causes 

1  Taylor  V.  street  Ry.  Co.,  80  Mich,  versy  relate  exclusively  to  the  al- 
77;  Town  of  Sullivan  v.  Phillips,  leged  conduct  and  misconduct  of 
110  Ind.  320;  Whipple  v.  Guile,  22  the  defendants  as  trustees.  It  not 
R  I.  576,  48  Atl.  431;  Mount  Carbon,  only  appears  that  by  the  joinder  of 
etc.  Co.  V.  Blanchard,  54  111.  240;  all  others  of  like  interest  with  the 
Brunner  v.  Bay  City,  46  Mich.  286.  plaintiff  the  defendants  will  not  be 

2  Home  Ins.  Co.  v.  Virginia,  etc  Co.,  embarrassed  or  subjected  to  any  ex- 
109  Fed.  681.  pense  or  inconvenience  in  making 

*  Walker  v.  Powers,  104  U.  S.  245;  their  defense,  nor  will  any  injustice 

Mobile  Savings  Bank   v.   Burke,  94  be  done  them,  but  that  the  matters 

Ala.  125;   Smith  v.   Bank,  69  N.  H.  in  dispute  can  be  more  conveniently, 

254.     Separate  complainants  having  economically,  and  expeditiously  ad- 

a  community  of  interest  against  the  justed  in  one  suit"  Chase  v.  Searles, 

same    defendant   may   be    properly  45  N.  H.  511;  Eastman  v.  Bank,  58 

joined  as  complainants  in  a  bill  in  N.  H.  421,  422;  Page  v.  Whidden,  59 

equity.     The  court  say:  "They  are  N.  H.  507,  509. 

all  equally  and  directly  interested  It  is  proper  to  join  plaintiffs  bav- 
in the  disposition  of  any  trust  funds  iug  common  interests  though  they 
now  held  by  the  defendants,  and  in  may  liave  distinct  title.  Lonsdale 
any  damages  that  may  be  awarded  Co.  v.  Woonsocket,  21  R  I.  498,  44 
agamst  them  for  a  breach  of  the  Atl.  929;  Proprietors  of  Mills,  etc.  v. 
trust.     All  the   matters  in   contro-  Braintree,  etc.  Co.,  149  Mass.  478. 


§  CO.j 


FARTIE8    TO   THE    BILL.  73 


of  action  set  forth  in  the  bill  are  antagonistic,  and  the  relief 
which  they  severally  seek  involves  distinct  questions  requiring 
different  evidence  and  leading  to  a  different  decree,  they  can- 
not join  as  complainants.^     Where  a  bill  was  filed  by  a  large 
number  of  persons  to  set  aside  as  illegal  the  sale  of  lots  owned 
by  them  severally,  sold  under  an  assessment,  the  court  say: 
"Matters  in  which  there  is  no  common  interest  on  the  one 
side  or  the  other  are  not  allowed  to  be  litigated  jointly ;  and 
while  there  are  some  classes  of  cases    where  the  community 
of  interest  is  not  as  plain  as  in  others,  we  do  not  think  they 
go    far   enough    to    warrant   this   suit.     The  joinder   of  sev- 
eral parties   similarly   interested  in   resisting  a  common  ag- 
gressor  was  originally  allowed,   to   save   multiplying  litiga- 
tion, to   settle   once   and  finally    the    matter   in   contention. 
It  was  at  first  strictly  confined  to  cases  where  the  act  com- 
plained of,  if   done,  or   continued,   would   affect   every   one 
in  the  same  way  and  would  affect  all,  if  any.     It  was  applied 
in  questions  of  commons  in  pasturage,  fisheries,  and  similar  in- 
terests, and  in  questions  of  tithes,  which  were  asserted  over 
certain  districts.     It  was  extended  on  the  same  grounds  to 
frauds  or  wrongs  by  corporate  agents  against  the  interests  of 
corporators,  public  and  private.     It  was  finally  applied  to  re- 
strain taxes  and  assessments,  in  which  the  inhabitants  of  local- 
ities taxed,  or  the  owners  of  land  in  assessment  districts,  were 
sought  to  be  charged  for  a  common  burden.     There  is  no  doubt 
that  in  some  of  these  cases  the  rule  may  have  been  extended 
somewhat  beyond  the  line  first  laid  down.     But  in  all  of  the 
cases   which  have   been   well  considered,  there  has  been  one 
cause  of  grievance  which  at  the  time  of  filing  the  bill  involved 
some  aggressive  action  in  which  all  of  the  parties  complaining 
were  inTolved  in  precisely  the  same  way.     And  we  have  held 
distinctly  that  in  such  actions,  if  any  person  set  up  grievances 
not  of  the  same  common  nature  with  those  of  the  rest,  the  bill 
could  not  be  maintained."  ^ 

1  Walker  v.  Powers,  104  U.  S.  245;  2  Brunner  v.  Bay  City,  46  Mich. 
Walsh  V.  Barney,  38  Mich.  73;  Doug-  2BG;  Kerr  v.  Lansing.  17  Mich.  34; 
lass  V  Boardman.  113  Mich.  618.  Miller  v.  Grandy,  13  Mich.  540;  Sco- 
Persons  having  adverse  interests  field  v.  Lansing,  17  Mich.  437;  Young- 
should  not  he  joined  as  complain  blood  v.  Sexton,  32  Mich.  40& 
ants.  Alston  et  ux.  v.  Jones  et  al.,  3 
Barb.  Ch.  (N.  Y.)  397. 


74  PARTIES   TO   THE    BILL.  [§  HI, 

(3)  Won-joinder  of  complainants:  In  discussing  who  should 
be  joined  as  complainants,  the  question  of  non-joinder  has  been 
in  a  measure  determined.  Naturally,  those  persons  whose  in- 
terests in  the  prosecution  of  the  case  are  common,  and  who  are 
materially  interested  in  the  suit  and  liable  to  be  affected  in 
their  rights  by  the  decree,  should  be  made  parties  complainant. 
By  interest  is  meant  a  right  in  the  subject  of  the  controversy 
which  a  decree  will  more  nearly  or  remotely  affect.  To  fail 
to  join  a  person  having  such  an  interest  in  the  prosecution  of 
the  case  would  be  termed  a  non-joinder  of  plaintiffs;  but  as  we 
have  seen,  if  the  party  tiius  interested  fails  or  refuses  to  join 
as  complainant  he  may  be  made  a  defendant,  and  so  the  conse- 
quences of  misjoinder  of  parties  complainant,  if  they  are  made 
defendants,  cannot  be  serious,  the  aim  of  the  court  of  equity 
being  to  bring  the  parties  before  it  in  one  or  the  other  capacity 
as  a  complainant  or  as  a  defendant. 

§  61.  Joinder,  misjoinder,  non-joinder  of  defendants. — 
(1)  Joinder  of  defendants:  Kot  only  should  persons  be  made 
parties  defendant  who  have,  or  claim  to  have,  interests  adverse 
to  the  complainant,  but,  as  we  have  seen,  all  persons  should  be 
so  joined  whose  interests  are  materially  affected  by  the  suit, 
and  who,  for  a  full  and  complete  settlement  of  the  entire  con- 
troversy, should  be  subjected  to  the  court's  jurisdiction  and 
direction  so  that  the  decree  may  be  effective  as  to  them  and 
their  interests.     Whoever  the  decree  would  materially  affect 
should  be  made  parties,  and  if  they  do  not  join  as  complain- 
ants they  should  be  made  defendants;  the  joinder  of  defend- 
ants, therefore,  is  governed  by  joint  or  common   interest  in 
the  subject-matter  of  the  controversy,  and  all  parties  standing 
in   that   relation   and   not  properly   joined    as   complainants 
should  be  impleaded  as  defendants.     It  has  been  said,  "in 
order  to  determine  whether  a  suit  is  multifarious,  or,  in  other 
words,  contains  distinct  matters,  the  inquiry  is  not  whether 
each  defendant  is  connected  with  every  branch  of  the  cause, 
but  whether  the  plaintiff's  bill  seeks  relief  in  respect  of  mat- 
ters which  are  in  their  nature  separate  and  distinct.     If  the 
object  of  the  suit  is  single,  but  it  happens  that  different  per- 
sons have  separate  interests  in  distinct  questions  which  arise 
out  of  that  single  object,  it  necessarily  follows  that  such  dif- 


§  61.]  PARTIES    TO   THE   BILL.  Y5 

ferent  persons  must  be  brought  before  the  court,  in  order  that 
the  suit  may  conclude  the  whole  subject."  ^ 

(2j  Misjoinder  of  defendants:  Misjoinder  is  the  joining  of 
persons  who  ought  not  to  be  made  defendants  —  who  have  no 
joint  or  common  interest  in  the  subject-matter  of  the  suit,  and 
who  will  not  be  affected  by  the  decree  prayed  for  in  the  bill. 
To  join  such  persons  as  parties  would  render  the  bill  multifa- 
rious. This  subject  has  been  already  discussed.^  It  has  been 
held  "  that  if  a  joint  claim  against  two  or  more  defendants  is 
improperly  joined  in  the  same  bill  with  a  separate  claim  against 
one  of  those  defendants  only,  in  which  the  other  defendants 
have  no  interest  and  which  is  wholly  unconnected  with  the 
claim  against  them,  all  or  either  of  the  defendants  may  demur 
to  the  whole  bill  for  multifariousness."' 

(3)  Non-joinder  of  defendants:  The  failure  to  join  persons 
materially  interested,  and  whose  interests  must  be  considered 
and  passed  upon  in  arriving  at  a  decree,  is  termed  non-joinder. 
Who  are  proper  and  indispensable  parties  to  the  bill  has  been 
considered,  and  the  necessity  of  bringing  such  persons  into  the 
case  as  parties,  that  the  decree  may  settle  and  determine  the 
whole  controversy,  noticed.  The  non-joinder  or  misjoinder  of 
parties  plaintiff  or  defendant  can  be  raised  by  any  defendant 
in  the  suit;  for  not  only  is  he  interested  because  of  the  effect 
of  the  decree  in  settling  the  whole  controversy,  but  he  has  a 
right  to  insist  that  all  persons  materially  interested  should  be 
joined;  for  it  may  be  that  the  person  whom  complainant  has 
failed  to  join  is  one  the  court  upon  the  hearing  would  find  lia- 
ble for  the  wrongs  and  injuries  complained  of,  or  at  least  suffi- 
ciently liable  that  the  responsibility  should  be  partially  borne 
by  him.     And  in  equity  the  defendants  as  well  as  the  com- 


1  Salvidge  v.  Hyde,  5  Madd.  (Eng.)  Chase  v.  Searles,  45  N.  H.  511;  Bowers 

146;  Torrent  v.  Hamilton,  95  Mich.  v.  Keesecher,  9  la.  422;  Hill  v.  Moone. 

159;    Hulbert  v.    Detroit  Cycle  Co.,  104  Ala.  353;  Pullman  v.  Stebbins, 

107   Mich.   84,    where  it    was    held  51  Fed.  10;  Densmore  v.  Savage,  110 

that  a  judgment  creditor  who  files  Mich.  27. 

a  bill  for  the  purpose  of  impounding  2  gee  ante,  §  38. 

all  the  assets  of  the  debtor  to  pay  his  3  Swift  v.  Eckford,  6  Paige  (N.  Y.), 

debts,    may  make  every   person   to  22-28;    Boyd    v.  Hoyt,  5  Paige,  65; 

whom  the  debtor  has  fraudulently  Woodruff    v.  Young,   43  Mich.   548; 

conveyed     property    a     defendant;  McBride  v.  Mclntyre,  91  Mich.  406. 


76  PARTIES   TO    TUK    BILL.  [§  02. 

plai  lants  may  insist  that  a  decree  be  found  placing  the  liabil- 
ity where  in  justice  and  equity  it  belongs;  and  then,  too,  be- 
cause frequently  from  the  answers  of  such  persons  valuable 
discovery  of  facts  may  be  obtained  which  would  influence  the 
findings  of  the  court,  if  not  defeat  the  prayer  of  the  bill.  Ad- 
vantage may  be  taken  of  these  defects,  as  we  shall  see,  b}'  de- 
murrer or  by  plea;  but  their  determination,  it  has  been  said, 
rests  upon  no  abstract  rule  which  can  be  universally  applied, 
but  each  case  depends  upon  its  own  facts  and  circumstances 
and  the  sound  discretion  of  the  court.'  Uut  where  it  is  not  in 
the  power  of  the  complainant  to  make  i)ersons  who  are  sub- 
stantially interested  parties  to  the  suit,  the  bill  will  not  be  held 
bad  for  non-joinder,  nor  will  it  be  held  defective  for  the  non- 
joinder of  persons  who  have  an  unknown  interest  which  would 
not  be  affected  by  the  decree.^  All  that  has  been  stated  as  to 
who  should  be  made  defendants  is,  of  course,  subject  to  the 
exceptions  applying  to  parties  already  discussed.' 

§  02.  15rini;iiig  in  new  parties. —  Great  latitude  is  allowed 
the  complainant  by  way  of  bringing  in  new  parties  after  the 
case  has  been  commenced,  even  at  any  time  before  the  final 
decree.  That  principle  of  equity  pleading  which  has  been  so 
often  repeated  is  ever  present  in  the  mind  of  the  court.  It  is 
the  aim  of  the  equity  court  to  settle  the  whole  controversy  in 
the  one  suit;  to  do  "complete  justice  and  not  by  halves."  The 
equity  court  never  loses  sight  of  this;  and  so  when  it  is  dis- 
covered that  persons  mterested  and  necessary  to  the  settlement 
of  the  controversy  have  not  been  made  parties,  the  plaintifi', 
upon  representing  this  fact  to  the  court  by  petition,  will  be 
permitted  to  implead  such  persons  either  as  complainants  or 
ilclendants  in  the  suit  —  complainants  should  they  so  consent, 
but  otherwise  defendants.  And  even  should  it  appear  at  the  final 
hearing  of  the  cause  that  certain  persons  should  be  made  de- 
fendants, in  order  that  the  decree  may  be  such  as  to  put  an 
end  to  the  litigation,  and  of  such  a  nature  that  the  perform- 
ance of  it  will  be  perfectly  safe  to  all  who  obey  it,  the  court 

'  Torrent  V.  Hamilton,  95  Mich.  159,  lage   of    Grandville     v.    Jenison,  84 

161:  1  Danl.  Ch.  PL  &  Prac.  334.  Mich.  54;  Wight   v.  Roethlisberger, 

2  Michigan   State   Bank    v.  Hast-  116  Mich.  241. 

ings,  1  Doug.  (Mich.)  225,  248;  Hoi-  ^  Ante,  §  49. 
comb  V.  Mosher,  50  Mich.  252;  Vil- 


g  63.]  PARTIES    TO    THE    BILL.  77 

will,  upon  its  own  motion,  order  such  persons  to  be  made  par- 
ties defendant  that  their  interests  may  be  represented  and  the 
litis:ation  be  completely  settled.  Such  an  amendment  to  the 
bilfof  complaint,  if  sought  by  the  party  complainant,  must  be 
by  petition  to  the  court,  alleging  sufficient  reasons  for  bringing 
the  new  parties  into  the  case. 

The  petition  should  so  fully  set  forth  the  facts  that  the  court 
would  be  able  to  make  the  order  from  the  facts  alleged.  The 
facts  set  forth  in  the  petition  and  the  amendment  sought  must 
be  germane  to  the  issue  made  by  the  bill  and  pleadings  already 
in  the  case.* 

§03.  Intervention. —  Following  the  same  equitable  princi- 
ple invoked  in  the  last  section,  persons  who  are  interested  in 
the  subject-matter  of  the  suit  who  have  not  been  made  parties, 
and  whose  interests  would  be  affected  by  the  decree  of  the 
court,  may,  upon  petition  alleging  facts  which  conclusively 
show  that  they  have  a  material  interest  in  the  controversy  and 
ought  in  equity  and  good  conscience  to  be  allowed  to  be  heard^ 
be  admitted  either  as  complainants  or  defendants,  as  to  the 
court  may  seem  proper.  "  All  the  parties  interested  are  entitled 
to  be  heard  if  they  desire  it,  and  are  proper,  if  not  necessary, 
parties  to  the  proceedings." ^  But  it  has  been  held,  and  for 
very  obvious  reasons,  that  this  rule  would  not  apply  to  suits 
in  personam^  but  applies  to  suits  in  rem. 

This  rule  is  very  clearly  laid  down  in  the  case  of  Colemaii 
V.  Martin.^  The  court  say:  "  In  a  suit  in  rem,  where  a  court 
has  jurisdiction  over  the  res,  and  its  decree  affects  the  interest 

iFranklin  Bank  Note  Co.   v.  Rail-  for   insisting    on    and    maintaining 

way  Co.,  103  Ga.  547.  30  S.   E.  419;  their  riglits."    French  v.  Gapen.  105 

Berryman  v.  Haden,  112  Ga.  752,  38  U.  S.  509. 

S.  E.  .■)3;   Vandeford  v.  Stovall,  117  In  Crippendorf  v.  Hyde,  110  U.  S. 

Ala.  344.  276,  282,  the  court  say:     "No  one, 

2 First  Nat.  Ina   Co.   v.  Salisbury,  even   in    equity,   is   entitled    to   be 

130   Mass.    303.     The    court    in   the  made  or  to  become  a  party  to  the 

opinion  say:     "The  petition  of  the  suit  unless  he  has  an  interest  in  its 

majority  of  the    bondholders,    wiio  object,  yet  it  is  the  common  practice 

were    not  originally    made    parties,  of  the  court  to  permit  strangers  to 

that  they  b-  permitted  to  come  in  the  litigation,  claiming  an  mterest 

and  be   joined  as   plaintiffs,   is  tiie  in  the  subject-matter,  to  intervene 

only  mnans  which  tiiey  could  alopt  on  their  own  behalf  to  assert  their 

to  make  them-elves   parties,  and  to  tit  es."' 

put  thera   into  tlie   proper  po.-ition  *li  Blatchf.  (U.  S.)  110. 


78  PARTIES    TO    THE    BILU  [§  64. 

in  the  res  of  all  persons  who  have  any  interest  in  the  res^  a 
person  who  has  a  lien  or  claim  upon,  or  other  interest  in  the 
res^  is  allowed  to  intervene  and  be  heard  for  his  own  interest 
in  the  res.  The  theory  of  this  is  that  the  person,  by  his  inter- 
est in  the  res,  has  an  interest,  in  a  legal  sense,  in  the  subject- 
matter  of  the  controversy.  But  in  a  suit  in  personam  a  per- 
son not  a  party  to  the  suit  can  have  no  interest,  in  a  legal 
sense,  in  a  personal  claim  made,  in  the  suit,  against  a  defend- 
ant therein,  unless  it  is  necessary  that  such  person,  not  a  party, 
should  be  made  a  party  in  order  to  properly  enforce  such 
claim," 

§  G4.  Some  observations  as  to  parties. —  Corporations:  xV 
corporation  is  a  legal  entity  and  may  sue  or  be  sued  in  any  of 
the  courts.  The  stockholders  are  not  the  corporation,  and 
though  all  of  them  were  made  parties  in  a  suit  they  would  not 
stand  for  the  corporation;  and  a  decree  in  such  a  suit,  if  it 
should  be  made,  would  not  bind  the  corporate  company.  When 
it  is  necessary  to  file  a  bill  on  behalf  of  a  corporation,  the  cor- 
porate name  is  used  the  same  as  though  it  were  an  intlividual; 
and  so  if  the  corporation  is  made  a  defendant.  This  rule  ob- 
tains whether  the  corporation  be  public  or  private,  for  corpo- 
rations may  be  made  parties  in  chancery;  but  if  discovery  is 
sought,  and  the  facts  are  in  the  possession  of  some  officer  of 
the  corporation,  such  officer  should  be  joined  as  a  party  de- 
fendant and  the  information  sought  from  him. 

Partnerships:  If  relief  is  sought  in  equity  by  or  from  a  part- 
nership, the  individual  members  of  the  concern  are  made  par- 
tics  by  a  proper  allegation  showing  or  referring  to  them  as 
partners  doing  business  under  the  firm  name  or  style  adopted 
by  the  concern ;  as,  for  example,  A,  B.  and  C.  D,,  partners,  doing 
business  under  the  firm  name  or  style  of  A.  B,  &  Company. 
No  particular  form  is  required;  simply  a  setting  forth  of  the 
facts  in  plain  terms. 

Trustee  and  cestui  que  trust:  When  a  trust  is  involved  in  the 
litigation  the  persons  interested  are  the  trustee  and  the  bene- 
ficiary or  cestui  que  trust,  and  following  the  general  rule  they 
must  be  made  parties,  but  should  be  described  in  such  a  manner 
as  to  show  clearly  their  relation  to  the  trust;  and  so  if  the 
beneficiary,  the  cestui  que  trust,  should  file  a  bill  to  foreclose  a 
mortgage  given  to  the  trustee  for  his  benefit,  he  should  make 


§  64,J  PAKTIES    TO    THE    BILL.  79 

the  trustee,  as  well  as  the  mortgagor,  a  party ;  but  it  has  been 
held  that  it  is  not  necessary  to  make  the  cestui  que  trust  a  party 
when  the  object  of  the  suit  is  merely  to  reduce  the  property 
into  possession. 

In  Christie  V.  Herrick'^  the  court,  noticing  an  apparent  ex- 
ception to  this  rule,  said:  "The  general  rule  unquestionably  is 
that  all  persons  materially  interested  in  the  subject-matter  of 
the  suit  ought  to  be  made  parties;  and  that  the  cestui  que  trust, 
as  well  as  the  trustees,  should  be  brought  before  the  court,  so 
as  to  make  the  performance  of  the  decree  safe  to  those  who 
are  compelled  to  obey  it,  and  to  prevent  the  necessity  of  the 
defendants  litigating  the  same  question  again  with  other  par- 
ties. But  the  case  of  assignees,  or  other  trustees  of  a  fund  for 
the  benefit  of  creditors,  who  are  suing  for  the  protection  of  the 
fund,  or  to  collect  moneys  due  the  fund  from  third  persons, 
appears  to  be  an  exception  to  the  general  rule  that  the  cestui 
qtte  timst  must  be  made  a  party  to  a  suit  brought  by  a  trustee. 
Lord  Redesdale  says,  trustees  of  real  estate,  for  the  payment 
of  debts  or  legacies,  may  sustain  a  suit  either  as  plaintiffs  or 
defendants,  without  bringing  the  creditors  or  legatees  before 
the  court,  which  in  many  cases  would  be  almost  impossible; 
and  the  rights  of  the  creditors  or  legatees  will  be  bound  by  the 
decision  of  the  court  against  the  trustees." 

Heirs,  executors  and  administrators  as  parties:  At  common 
law  the  personal  property  of  an  intestate  vests  in  his  personal 
representatives  for  the  settlement  of  his  estate  and  not  in  his 
heirs  until  the  estate  is  settled  and  distribution  of  the  person- 
alty made,  as  was  held  in  CuUen  v.  O'Hara?  "  It  is  well  settled, 
both  under  our  own  and  the  English  statutes,  that  when  a  man 
dies  intestate  his  personal  property  does  not,  like  his  real  es- 
tate, descend  to  his  next  of  kin  or  heirs  at  law.  It  remains  in 
abeyance  until  administration  granted  upon  his  estate,  and  is 
then,  as  we  have  before  remarked,  vested  in  the  administrator, 
as  of  the  time  of  the  death  of  the  intestate.     Ko  title  vests  in 

U  Barb.  Ch.  (N.  Y.)  254;  Mitfoni's  347;  Whit  v.  Ray,  4  Ired.  (N.  C.)  14; 

PI.   (4th  Lond.    ed.)    174;   Franco   v.  Craig  v.  Miller,  12  id.  375;  Jewett  v. 

Franco,  3  Ves.  76.  Smith,  12  Mass.  309;  Muir  v.  Trustees 

-'4  Mich  l;j2;  Salter  V.  Sutherland,  of    the    Leake    &     Watts    Orphan 

133  Mich.  225;  Randall  v.  Lang,  23  Asylum,  3  Barb.  Ch,  477. 
Ala,  751;  Koorbach  v.  Lord.  4  Conn, 


so  PARTIES    TO    THE    TILL.  [§  64. 

his  next  of  kin  until  his  estate  has  been  administered  upon,  and 
then  they  take  the  surplus  remaining  after  payment  of  the 
debts  of  the  intestate  and  expenses  of  administration,  each  in 
his  i)roportion,  under  the  statute  of  distributions.  Until  thon, 
an  heir  or  next  of  kin  of  tlie  intestate,  although  having  a  right 
to  his  distributive  share,  has  no  right  to  the  possession  of  either 
the  whole  or  any  specific  portion  of  the  personal  property. 
Nor,  until  distribution,  can  he  maintain  any  action  in  respect 
to  it,  unless  it  be  founded  upon  his  own  actual  possession  and 
against  a  mere  wrong-doer.  In  fact,  his  rights  of  possession 
and  of  action  in  respect  to  the  personal  property  before  dis- 
tribution are  neither  greater  nor  less  than  those  of  a  mere 
stranger."  But  the  real  estate  of  which  an  intestate  dies  seized 
descends  to  his  heirs  who  are  entitled  to  the  possession,  pro- 
ceeds ami  control  of  it.  Therefore  the  question  as  to  who  are 
parties  in  interest  and  who  will  be  affected  by  the  litigation 
depends  largely,  if  not  entirely,  upon  the  subject-matter  of  the 
suit.  If  the  entire  controversy  affects  only  the  personalty,  and 
does  not  either  directly  or  indirectly,  or  remotely,  affect  the 
real  estate,  the  interests  of  the  heirs  —  as,  for  example,  the  en- 
forcing of  a  claim  against  the  personal  property  of  the  de- 
cedent,—  the  administrator,  or  if  a  testate  estate,  and  it  did  not 
affect  any  legacy  or  interests  of  devisees,  the  executor,  would 
be  the  proper  party. 

It  is,  however,  somewhat  difficult  to  conceive  of  a  case  that 
would  not  in  some  degree  affect  the  interest  of  the  heirs  by  in- 
directly involving  their  claims  to  the  real  estate,  for  it  is  well 
understood  that  while  the  personalty  is  primarily  charged  with 
the  payment  of  the  debts  of  the  estate,  the  real  properly  is 
lial)le  when  the  personalty  is  insufficient;  and  so  generally  it 
is  best,  unless  it  is  unquestionable  that  the  interest  of  the  heirs 
will  not  be  involved,  to  join  the  heirs  as  parties  in  the  suit. 

In  cases  where  the  decedent  has  in  his  life-time  executed 
covenants  lor  the  performance  of  which  the  realty  is  liable, 
the  heirs  must  be  joined  with  the  personal  representatives; 
and  so  where  a  testator  has  provided  that  certain  of  his  realty 
shall  be  chargeable  with  the  payment  of  incumbrances,  leg- 
acies, debts  or  other  claims,  the  heirs  must  be  joined  with  the 
personal  representatives  if  litigation  results;  the  rule  Iteing 
clear  that  if  the  object  of  the  litigation  affects  the  realty.  thenL 


§  tu.] 


PARTIES    TO    THE    BILL. 


81 


the  heirs  aro  proper  and  indispensable  parties.    As,  for  example, 
if  the  suit  be  one  to  set  aside  a  deed  executed  by  the  decedent, 
and  claimed  to  have  been  obtained   by  fraud,  the  heirs  and 
not  the  personal  representatives  are  the  indispensable  parties.' 
The  subject  raav  be  further  illustrated  by  an  example  where 
the  trust  is  created  by  will.     If  the  trust  is  only  chargeable 
against  personal  property,  as  for  the  payment  of  legacies  or 
nTarshaling  of  assets,  then  the  executor  or  administrator  would 
necessarily  be  a  party;  but  if  it  should  be  chargeable  against 
the  real  estate,  then  the  heirs  should  be  parties;  if  chargeable 
against  both  the  realty  and  the  personalty,  then  both  the  heirs 
and   the   personal   representatives   should    be  joined.     Third 
parties  are  sometimes  made  necessary  parties  in  this  class  of 
cases;  as,  for  example,  where  such  persons  have  possession  of 
the  assets  or  some  interest  in  them,  or  where  a  third  party  is 
in  possession  of  the  real  estate,  as  a  tenant  or  leaseholder. 


1  Lord  V.  Underdunck,  1  Sandf.  Cli. 
(N.  Y.)  46;   Campbell  v.  Johnston,  1 
Sandf.   Ch.  (N.  Y.)    148;  Ea^le  Fire 
Ins.  Co.  V.  Canimet  et  al..  2  Edw.  Ch. 
(N.  Y.)  127;  Liviniiston  v.  Iron  Co..  2 
Paige  Ch.  (N.  Y.)  b90.     Where   the 
vendor  of  lands  was  induced  to  sell 
the  land  upon  false  representations, 
or  under  circumstances  equivalent 
tliereto,    and   afterwards    makes    a 
sul)sequent    conveyance    while    the 
fraudu  ent  vendee  is  in  actual  pos- 
session and  dies  leaving  the  matter 
in  this  unsettled  state,  it  was  held 
that  the  heirs  of  the  vendor  should 
be  parties  to  a  bill  to  set  aside  the 
sale    of    the    property   obtained   by 
fraud,  and  that  a  bill  filed  by  the 
second  vendee  for  that  purpose  can- 
not  be  sustained.     The   court    say: 
"But  1  think  there  is  an  insuperable 
objection  to  the   complainant's  re- 
covering upon  his  bill  in  its  present 
shape.     Although  the  conveyance  of 
the  land  was  obtained  by  a  fraudu- 
6 


lent  noisrepresentation,  it  was  not 
void.  It  was  only  voidable  at  the 
election  of  the  vendor.  And  the 
defendants,  or  some  of  them,  were 
in  the  actua'  possession  of  the  prem- 
ises, claiming  title  to  the  s;i  me  under 
tht-ir  deed  at  the  time  of  the  con- 
veyance to  the  cumjilain  .nt.  Tiie 
legal  title  to  this  property  could  not 
pass  to  the  complainant  under  that 
conveyance,  while  it  was  thus  held 
adversely.  If  John  Livingston  was 
still  living  he  would  be  a  necessary 
party  to  a  bill  to  rescind  the  sale  on 
the  tiroundof  fraud.  Since  Ids  death, 
all  his  heirs-at-law.  or  the  devisees 
of  this  particular  part  of  liis  estate, 
are  necessary  parties."  Cutow  v. 
Mowatt.  i  Edw.  Ch.  (N.  Y.)  o?:  Jack- 
son v.  Forrest  &  Legiiett.  2  Barb.  Ch. 
576;  Richardson  v.  Ri(  hanlson,  83 
Mich.  6)3:  Story,  Eq.  PL.  sees.  170, 171, 
172;  Glover  v.  Patten.  16.">  U.  S.  394; 
Potter  v.  Gardner,  1-'  Wheat.  499; 
Dandridge  v.  Curtis,  2  Pet.  310-77. 


CHAPTER  V. 

DRAFTING  THE  BILL. 


§  65.  Certainty  and  clearness  to  be 
observed. 

66.  The  necessary  parts  of  the  nine 

parts  of  the  bilL 

67.  Signing?  the  bill. 

68.  Verilication  of  the  bill 


69.  Form   of  the  several  parts  of 

the  original  bill. 

70.  A  form  of  bill  in  equity. 

71.  General     observations    as    to 

form,  eta 
T2.  The  filing  of  the  bill. 


§  G5.  Certainty  and  clearness  to  be  observed. —  It  has  already 
been  noticed  that  the  rules  of  equity  pleading  do  not  demand 
that  degree  of  certainty  that  is  required  in  common-hiw  plead- 
ing, but  there  is  a  degree  of  certainty  that  must  be  observed, 
and  if  not  observed  will  render  the  pleading  ill.  It  has  been 
said,  however,  that  "  certainty  to  a  coninion  intent  is  the  most 
that  the  rules  of  equity  ordinarily  require  for  any  purpose."* 
There  are  necessarily,  as  is  generally  conceded,  certain  portions 
of  the  chancery  bill  that  must  be  stated  with  clearness  and 
certainty:  the  right,  title  and  claim  of  the  plaintiff,  the  in- 
jury or  grievance  of  which  he  complains,  the  relief  prayed  for, 
and  with  as  convenient  certainty  as  possible  the  essential  cir- 
cumstances of  time,  place,  manner  and  other  incidents.  Pro- 
lixity and  unnecessary  verbiage  is  to  be  avoided.  Clear,  full, 
but  concise  expression,  giving  the  substance  of  the  salient  facts 
relied  upon,  is  to  be  desired.  The  right  or  claim  of  the  plaint- 
iff is  the  foundation  of  the  action.  If  there  is  failure  in  this, 
the  suit  cannot  proceed.  Exactly  what  title  the  plaintiff  has 
to  the  subject-matter  of  the  controversy,  the  full  extent  of  his 
right  or  claim,  the  defendant  is  entitled  to  know  that  he  may 
make  his  answer  or  defense,  and  the  court  must  know  in  order 
to  determine  the  right  of  the  plaintiff  to  proceed. 

With  what  certainty  this  title  must  be  set  forth  has  already 
been  noticed.^  Kot  by  setting  forth  in  hcec  verha  title  deeds, 
contracts  or  records  upon  which  it  rests,  but  sufficient  of  sub- 

1  Story,  Eq.  PL,  sec.  240.  ^  Ante,  %%  32,  33,  34. 


§  60.]  DRAFTING    THE   BILL.  83 

stance  and  description  that  tho  defendant  and  the  court  may 
know  what  they  are,  and  if  recorded  where  the  record  maybe 
foun<l.  The  injury  or  grievance  is  no  less  important;  this 
should  be  clearly  and  concisely  set  forth,  for  upon  this  state- 
ment the  defendant  depends  to  meet  the  case  made,  and  the 
court  to  determine  if  the  bill  is  well  founded  in  equity.  And 
then,  too,  the  injury  or  grievance  must  appear  to  be  a  natural 
result  of  the  facts  and  incidents  set  forth  in  the  statement  of 
facts  upon  which  they  depend. 

The  relief  prayed  for  is  the  third  very  essential  part  of  the 
bill.  Great  care  should  be  taken  in  framing  this  part  of  the 
bill.  Certain  requirements  must  be  observed.  First,  the  prayer, 
as  has  been  stated,  must  be  consistent  with  the  facts  alleged 
and  the  grievances  complained  of.  Second,  no  more  nor  no 
less  should  be  asked  by  way  of  relief  than  complainant  is  equi- 
tably entitled  to;  and  third,  the  prayer  should  particularly 
state  from  what  persons  or  parties  relief  is  sought.^ 

§  60.  The  necessary  parts  of  the  nine  parts  of  the  bill. — 
Keeping  in  mind  the  essentials  of  the  bill  discussed  in  the  pre- 
ceding section,  we  can  better  understand  which  of  the  nine 
parts  of  the  original  bill  in  equity  are  necessary  to  be  used  in 
drafting  the  bill.  Ordinarily  it  is  sufficient  to  include  the 
following  parts  and  in  the  order  stated:  The  address,  the  in- 
troduction, the  premises  or  stating  part,  the  interrogating  part 
when  discovery  is  sought,  the  prayer  for  relief,  and  the  prayer 
for  process.  This  comports  with  the  rule  adopted  by  the 
United  States  court.' 

J  Ante,  %%  33,  etc.  that  the  acts  complained  of  are  con- 
'-'U.  S.  Eq.  Rule  21.  "The  plaintiflF,  trary  to  equity,  and  that  the  defend- 
in  his  bill,  sh;ill  be  at  liberty  to  ant  is  without  any  remedy  at  law; 
omit,  at  his  option,  the  part  which  and  the  bill  shall  not  be  demurrable 
is  usually  called  the  common  con-  therefor.  And  the  plaintiff  may,  in 
federacy  clause  of  the  bill,  averring  the  narrative  or  stating  part  of  his 
a  confederacy  between  the  defend-  bill,  state  and  avoid,  by  counter- 
ants  to  injure  or  defraud  the  plaint-  averments,  at  his  option,  any  matter 
iff;  also  what  is  commonly  called  or  thing  which  he  supposes  will  be 
the  charging  part  of  the  bill,  setting  insisted  upon  by  the  defendant  by 
forth  the  matters  or  excuses  which  way  of  defense  or  excuse  to  the  case 
the  defendant  is  supposed  to  intend  made  by  the  plaintiff  for  relief.  The 
to  set  up  by  way  of  defense  to  the  prayer  of  the  bill  shall  ask  the  spe- 
bill;  also  what  is  commonly  called  cial  relief  to  which  the  complainant 
the  jurisdiction   clause  of  the  bill,  supposes  himself  entitled,  and  also 


S4 


DRAFTING    THE    BILL. 


L§«7. 


§  07.  Signing  the  bill. —  "When  the  bill  is  drawn  and  com- 
plete in  its  essential  parts  it  should  be  signed  by  couns  -1  for 
the  coinphiinant;  this  is  required  to  show  to  the  court  that  the 
bill  is  presented  in  good  faith  for  consideration.  It  is  taken  as 
a  guaranty  on  the  part  of  the  counsel,  who  is  an  oflicer  of  the 
court,  and  upon  whom  the  court  has  a  right  to  depend,  that 
the  case  presented  is  not  frivolous.  The  signing  of  the  bill  is 
provided  for  by  rule  in  the  United  States  court.*  "  Every 
bill  shall  contain  the  signature  of  counsel  annexed  to  it,  which 
shall  be  considered  as  an  affirmation  on  his  part  that,  u])on  the 
instructions  given  to  him  and  the  case  laid  before  him,  there 
is  good  ground  lorthe  suit,  in  the  manner  in  which  it  is  framed.'' 

The  lawyer  conducting  suits  and  proceedings  in  chancery  is 
usually  designated  as  a  solicitor,  or  solicitor  and  counselor,  and 
is  so  described  when  signing  pleadings  or  petitions  tiled  in  the 
court.  The  usual  manner  of  signing  the  bill  inequity  is  to  add, 
after  the  signature,  as  descriptive  of  the  person,  "•  solicitor  and 
of  counsel  for  the  complainant."  In  this  country  there  is  no 
substantial  distinction  between  counsel  and  solicitor,  and  it  has 
been  somewhat  mooted  whether,  if  a  counselor  of  the  court 
should  sign  his  name  to  the  bill,  it  would  not  be  sufficient  if 
he  did  not  add  solicitor  and  of  counsel.^  But  the  general  practice 


shall  contain  a  prayer  for  general 
relief;  and  if  an  injunction,  or  a 
writ  of  ne  exeat  regno,  or  any  other 
special  order,  pending  the  suit,  is  re- 
quired, it  shall  also  be  specially  asked 
for." 

»  U.  S.  Eq.  Rule  •:4. 

2Stinson  v.  Hildrup.  8  Biss,  (TJ.  S.) 
376.  Judge  Druinmond,  in  rendering 
the  opinion,  says:  "The  authorities 
which  have  been  referred  to  by  the 
counsel  of  the  defendants  are,  most 
of  them,  from  the  English  courts, 
wliere,  as  is  well  known  there  is  a 
distinction  between  attorneys,  solic- 
itors and  barristers,  and  it  might  be 
a  very  proper  practice  in  courts 
where  there  was  this  distinction  that 
there  should  be  added  to  the  signa- 
ture the  description  of  tliat  part  of 
the  profession  to  which  the  person 
belonged,  whether  a  solicitor,  an  at- 


torne}',  or  a  barrister,  but  there  is  no 
such  distinction  in  our  courts  and 
under  our  practice;  and  the  reason 
of  the  rule  requiring  the  description 
of  the  person  to  be  added,  ceasing, 
the  rule  itself,  it  would  seem,  ouglit 
to  cease.  An  attorney  regularly  ad- 
mitted to  practice  in  this  court  is  a 
counselor  of  the  court  witiiin  the 
twenty-fourth  rule.  A  distinction  is 
sometimes  made  as  to  these  terms 
which  is  purely  arbitrary,  between 
proceedings  in  equity  and  at  common 
law.  The  practice  of  the  bar  generally 
is,  when  a  member  signs  a  common- 
law  pleading  it  is  as  attorney;  if  an 
equity  pleading,  he  signs  it  as  solic- 
itor. But  this  is  a  distinction  arising 
merely  from  the  two  kinds  or  modes 
of  proceeding.  He  is  counsel  and 
attorney  of  the  court  in  whichsoever 
form  he  appends  his  signature.     In 


§67.] 


DRAFTING    THE    BILL. 


85 


is  as  stated,  and  in  most  of  the  states  it  is  required.^  Usually 
the  bill  is  also  signed  by  the  comphiinant,  his  signature  adding 
indorsement  to  the  allegations  in  the  bill  of  complaint.  If  the 
bill  is  by  a  private  corporation,  it  should  be  signed  by  some 
officer  of  the  company  authorized  to  do  so  — generally  by  the 
president  or  manager;  if  by  a  municipal  corporation,  by  the 
mayor  of  the  city  or  president  of  the  village,  as  the  case  may 
be.  The  bill  may  be  signed  by  an  attorney  in  fact  of  the  com- 
plainant, or  an  agent  authorized  to  do  so,  and  is  often  signed 
for  the  complainant  by  his  solicitor;  but  the  bill  need  not  be 
signed  by  the  complainant  if  it  is  signed  by  counsel,  unless  it  is 
required  by  a  rule  of  court  or  a  statute  of  the  state.^  No  doubt 
a  bill  signed  by  the  complainant  would  be  sufficient  without 
the  signature  of  a  solicitor  of  the  court,  because  in  this  country 
any  person  may  appear  in  any  court  and  conduct  his  own  case 
in  person.' 


common-law  proceedings  we  speak 
of  the  actor  or  party  bringing  the 
suit  as  plaintitr,  ana  in  equity  pro- 
ceedings as  complainant;  but  in  point 
of  fact  this  is  a  distinction  without 
a  difference.  Tlie  complainant  in 
the  equity  proceeding  is  the  *'  plaint- 
iff," as  the  plaintiff  in  the  common- 
law  proceeding  is  the  "complain- 
ant." They  are  convertible  terms, 
although,  for  the  purpose  of  distin- 
guishing whether  the  suit  is  at  law 
or  in  equity,  different  names  are 
sometimes  used.  In  the  equity  rules 
of  the  supreme  court  the  actor  is  al- 
ways called  plaintiff,  and  not  com- 
plainant. 

"  It  will  be  observed  that  the 
twenty-fourth  rule  does  not  require 
that  the  party  signing  as  counsel 
shall  give  any  character  to  his  signa- 
ture. It  does  not  say  that  he  shall 
designate  that  he  is  of  counsel,  or 
solicitor,  or  an  attorney,  but  simply 
that  his  signature  shall  be  annexed 
to  the  bill.  'The  bill  shall  contain 
the  signature  of  counsel.'  It  might 
be  a  matter  of  grave  doubt,  whether. 


in  point  of  fact,  the  true  construc- 
tion of  this  rule,  if  a  counselor  of  the 
court  did  actually  append  liis  signa- 
ture to  the  bill,  would  require  him 
to  describe  himself  in  any  other  way 
than  what  might  be  inferred  from 
the  mere  signature  itself. 

"I  am  somewhat  at  a  loss  to  know 
what  is  the  distinction  under  our 
practice  between  the  terms  'solic- 
itor' and  'counselor.'  I  sliould  be 
very  much  inclined  to  think  that  if 
there  were  the  signature  of  counsel 
to  the  bill,  whether  he  was  described 
as  'counsel,'  as  'solicitor'  or  as  'at- 
torney,' that  the  description  might 
be  rejected  as  surplusage,  and  that 
it  would  stand  as  a  compliance  with 
the  rule." 

1  Eveland  v.  Stephenson,  45  Mich. 
394;  Davis  v.  Davis.  19  N.  J.  Eq.  180; 
1  Danl.  Ch.  Pl.&Pr.  312:  Story,  Eq.  PI., 
sec.  47;  Bernier  v.  Bernier,  73  Mich. 
43.  Bill  may  be  signed  by  solicitor. 
Henry  v.  Gregory,  29  Mich.  68;  Stin- 
son  V.  Hildrup,  8  Biss.  (U.  S.)376. 

2Stadler  v.  Hertz,  13  Lea  (Tenn.), 
815;  Hatch  v.  Eustaphieve,  Clark's 


3  Chapman  v.  Publishing  Co.,  128  Mass.  478;  Carleton  v.  Ptugg,  149  Mass.  550. 


80 


DRAFTING    THE    BILL. 


[§C8. 


§  68.  Terification  of  the  bill. —  "There  is  no  rule  ro(iuir- 
ing  bills  in  cases  of  general  equity  cognizance  to  be  sworn  to" 
either  in  this  country  or  in  England.^  It  is,  however,  the 
recognized  practice  in  this  country  and  in  England  that  where 
the  "  bill  attempts  to  remove  into  a  court  of  equity  matters 
cognizable  in  a  court  of  law,  and  bills  requiring  the  prelimi- 
nary aid  of  the  court  upon  facts  stated  in  the  bill,  if  the  facts 
are  not  otherwise  substantiated,  should  be  verified."  ^  The 
reason  of  tin?  rule  requiring  verification  of  the  bill  in  cases 
where  the  bill  seeks  the  preliminary  aid  of  the  court,  as  the 
asking  for  a  writ  of  injunction,  or  the  appointment  of  a  re- 
ceiver ex  parte,  is  apparent.  In  such  cases  the  bill  must  be 
relied  upon  for  proof  of  the  facts  it  contains  and  upon  which 
the  action  of  the  court  is  based.  It  has  been  held,  however, 
that  failure  to  verify  an  injunction  bill  is  of  no  importance 
except  on  motion  for  an  injunction,  or  to  prevent  an  order  for 
the  dissolution  of  the  injunction  granted  ex  parte} 


Ch.  (N.  Y.)  63.  If  the  bill  be  for  a 
corporation,  and  is  signed  by  counsel, 
it  need  not  have  the  seal  of  the  cor- 
poration appended.  Moundsville  v. 
Railway  Co.,  37  W.  Va.  92. 

1  Jerome  v.  Jerome.  5  Conn.  352. 
"  Independent  of  any  statutory  pro- 
vision, and  where  no  preliminary 
order  is  required,  it  is  not  generally 
necessary  that  bills  should  be  sworn 
to,  although  an  answer  on  oath  is 
not  waived."  1  Barb.  Ch.  Prac  44, 
note;  1  Danl.  Ch.  PI.  &  Prac  (Am.  ed.) 
395,  note  A, 

2Moore  v.  Cheeseman,23  Mich.333; 
Township,  etc.  v.  Burch,  78  Mich, 
641-47;  Atwater  v.  Kinman,  Harr. 
Ch.  (Mich.)  245.  "Where  no  prelim- 
inary order  is  required  it  is  not 
necessary  that  the  bill  should  be 
sworn  to,  although  the  answer  under 
oath  is  not  waived.  This  is  not  re- 
quired by  the  English  practice,  or  by 
the  rules  of  this  court  as  they  now 
stand."  Where  the  bill  was  framed 
as  a  mere  pleading  and  was  not  con- 
structed upon  the  theory  that  it 
might   be  requisite  to  use   it  as  a 


sworn  statement  on  which  to  base 
an  application  for  preliminary  re- 
lief, and  the  only  relief  contemplated 
was  such  as  would  be  grantable  on 
final  hearing,  and  the  case  exhibited 
was  within  the  ordinary  jurisdiction 
and  did  not  stand  on  any  peculiar 
ground  which  might  call  for  a  veri- 
fication of  the  bill,  it  was  held  that 
it  need  not  be  verified.  Robinson  v. 
Baugh,  31  Mich.  290.  Where  neither 
injunction  nor  discovery  issoui^ht  the 
bill  need  not  be  sworn  to.  Baker  v. 
Atkins,  62  Me.  205.  Generally,  when 
no  preliminary  order  is  asked  for 
and  no  discovery,  the  bill  need  not 
be  verified.  Jerome  v.  Jerome.  5 
Conn.  352;  Labadie  v.  Hewitt.  85  111. 
341;  Hilton  v.  Lothrop,  46  Me.  297; 
Dinsmore  v.  Crossman,  5!  Me.  441; 
Waller  v.  Shannon,  53  Miss.  500.  A 
bill  signed  by  the  attorney  need  not 
be  sworn  ta  Burns  v.  Lyude,  88 
Mass.  (6  Allen),  305. 

SGlidden  v.  Norvell,  44  Mich.  203; 
Manistique  Lumbering  Co.  v.  Love- 
joy,  55  Mich.  190;  T.  &  A.  Ry.  Co.  v. 
D.,  L.  &  N.  Ry.  Co.,  61  Mich.  9;  Lan- 


§  69.]  DRAFTINQ    THE    BILL.  87 

Bills  praying  for  divorce  should  be  verified  for  the  reason 
that  there  must  be  proof  that  there  was  no  collusion  between 
the  parties  at  the  time  of  filing  the  bill.  This  is  usually  a 
statutory  requirement,  but  if  there  were  no  such  requirement 
the  court  could  refuse  to  consider  the  bill,  where  no  such  veri- 
fication is  made,  upon  the  grounds  of  public  policy.*  Creditors' 
bills  to  reach  equitable  assets  of  a  debtor  are  generally  re- 
quired to  be  verified,  for  usually  a  receiver  is  asked  for;  and 
where  preliminary  aid  is  sought  these  bills  by  rule  are  usually 
required  to  be  verified. 

§  69.  Form  of  the  several  parts  of  the  original  bill.— 
The  several  parts  of  the  original  bill  have  already  been  named," 
and  the  parts  not  required  in  the  modern  chancery  bill  have 
been  noted.  The  forms  of  the  several  parts  of  the  original 
bill  are  here  appended. 

1.  The  Address. 

In  the  United  States  court: 

The  District  [or  Circuit]  Court  of  the  United  States  in  and  for 
the District  of . 

A.  B.,  Plaintiff,     ) 

V.  >  In  Equity. 

C.  D.,  Defendant.  ) 

To  the  Honorable  the  Judges  of  the  Dist/rict  [or  Circuit]  Court 
of  the  United  States  in  and  for  the  District  of— — . 

In  the  state  courts  as  follows  : 

'     (b)  State  of  ^^Iichigan. 
To  the  Circuit  Court  for  the  County  of  Wayne,  in  Chancery.^' 

^.  The  Introduction. 

(a)  In  the  United  States  Court. 

John  Jones  of  Detroit,  and  a  citizen  of  the  state  of 
Michigan,  brinies  this,  his  bill,  against  William  Smith  of  the 
city  o1  Columbus,  and  Samuel  Green  of  the  city  of  Cleve- 
land, both  citizens  of  the  state  of  Ohio.  And  thereupon  your 
orator  complains  and  says  that . 

nert  v.  Pies,  1  Cleve.  L.  Rep.  210,  4  '^  Ante,  §  27. 

Ohio  Dec.  282.  '  I*  should  be  observed  that  the 

iBriggs   V.    Briggs,   20   Mich.    34;  address  used  in  the  several  states  is 

Green  v.  Green,  26  Mich.  437;   Ayres  provided  by  tlie  statutes  or  rules  of 

V.  Gartner,  90  Mich.  380.  court  in  the  particular  state. 


88  DKAFTINQ    THE    BILL.  [§  69. 

(b)  In  the  state  courts  usually  as  follows  : 

Your  orator,  John  Jones  of  the  city  of  Detroit,  in 
the  county  of  Wayne,  respectfully  represents  unto  the  court 
that . 

(c)  If  the  bill  is  exhibited  by  a  woman,  as  follows  : 

Your  oratrix,  Mary  Jones  of  the  city  of  Detroit,  in 
the  county  of  Wayne,  respectfully  represents  unto  the  court 
that . 

(d)  If  by  husband  and  wife,  as  follows: 

Your  orator  and  oratrix,  John  Jones  and  Mary  Jones, 
his  wife,  of  the  city  of  Detroit,  in  the  county  of  Wayne,  re- 
spectfully represent  unto  the  court  that . 

(e)  If  the  bill  is  exhibited  by  an  infant,  as  follows: 

Your  orator,  James  Jones,  of  the  city  of  Detroit,  in 
the  county  of  Wayne,  an  infant  under  the  age  of  twenty-one 
years,  to  wit,  of  the  age  of  sixteen  years,  by  John  Doe,  of  the 
said  city  of  Detroit,  his  next  friend,  represents  unto  the  court 

tliat . 

Or^  if  hy  guardian^  insert:  By  John  Doe,  of  the  city  of  De- 
troit, in  the  county  of  Wayne,  his  guardian,  respectfully  shows 
unto  the  court  that . 

(f)  If  the  bill  is  exhibited  by  a  corporation,  as  follows: 

Your  orator.  The  Detroit  Knitting  Works,  a  corpora- 
tion duly  organized  and  doing  business  under  and  by  virtue  of 
the  laws  of  the  state  of  Michigan,  respectfully  represents  unto 
the  court  that . 

3.  The  Premises  or  Stating  Part. 

That,  etc.  [here  should  be  inserted  the  facts  and  circum- 
stances upon  which  the  complainant  relies,  stating  his  title  to 
the  subject-matter  of  the  suit  and  the  wrongs  and  grievances 
complained  of]. 

J^.  The  Confederating  Part. 

[This  part  is  unnecessary,  but  may,  however,  be  used.] 
But  now  so  it  is,  may  it  please  the  court,  that  the  said 
William  Smith,  combining  and  confederating  with  divers  per- 
sons [if  there  are  several,  name  them],  at  present  unknown  to 
your  orator,  whose  names,  when  discovered,  your  orator  prays 
may  be  here  inserted  with  apt  words  to  charge  them  as  par- 
ties defendant,  and  contriving  how  to  wrong  and  injure  your 
orator  in  the  premises,  he,  the  said  William  Smith,  absolutely 
refuses,  etc.  [here  stating  the  supposed  grounds  on  which  de- 
fendant avoids  plaintiff's  claim,  which  should  be  traversed  in 
the  charging  part  of  the  bill]. 


§  t)9.]  DKAFTING   THE    BILL.  89 

6.  The  Charging  Part. 

[This  part  is  also  unnecessary,  but  used  at  pleader's  option.] 
That  the  defendant  sometimes  alleges  and  pretends  [here 
stating  the  supposed  pretenses  of  the  defendant],  and  at  other 
times  he  alleges  and  pretends,  etc.,  whereas  your  orator  charges 
the  contrary  thereof  to  be  the  truth,  and  that  [here  state  the 
special  matter  with  which  plaintiff  meets  the  defendant's  sup- 
posed claim]. 

6.  The  Jurisdictional  Clause. 

[This  clause  is  also  unnecessary.] 

All  which  actings,  doings,  and  pretenses  of  the  defendant 
\or  defendants^  if  there  are  more  than  one]  are  contrary  to 
equity  and  good  conscience  and  tend  to  the  manifest  wrong, 
injury  and  oppression  of  your  orator  in  the  premises.  In  con- 
sideration whereof,  and  inasmuch  as  your  orator  is  entirely 
remediless  in  the  premises  according  to  the  strict  rules  of  the 
common  law,  and  can  only  have  relief  in  a  court  of  equity 
where  matters  of  this  nature  are  properly  cognizable  and  re- 
lievable. 

7.  The  Interrogating  Part. 

[This  is  usually  unnecessary,  or,  if  used,  is  generally  con- 
densed and  in  more  concise  language.] 

To  the  end,  therefore,  that  the  said  William  Smith,  and 
the  rest  of  the  confederates  when  discovered,  may,  upon  their 
several  and  respective  oaths,  full,  true,  direct  and  perfect  an- 
swer make  to  all  and  singular  the  matters  hereinbefore  stated 
and  charged  as  fully  and  particular  as  if  the  same  were  here 
again  repeated,  and  they  thereunto  interrogated,  and  that  not 
only  as  to  the  best  of  their  respective  knowledge  and  remem- 
brance, but  also  according  to  the  best  of  their  respective  knowl- 
edge, information  and  belief.  [If  discovery  is  sought  the  fol- 
lowing may  be  added:]  And  more  particularly  that  they  may 
answer  and  set  forth,  first,  whether,  etc.  [here  inserting  spe- 
cial interrogatories  to  be  answered  by  the  defendant];  second, 
whether,  etc.   [here  inserting  other  interrogatories,  etc.] 

8.  Prayer  for  Relief. 

And  that  the  defendant  may  come  to  a  fair  and  just  account 
[here  state  the  special  relief  the  complainant  seeks;  that  is,  in- 
sert the  special  prayer,  and  follow  it  by  a  general  prayer  as 
follows:]  And  thatyour  orator  may  have  such  further  and  such 
other  relief  in  the  premises  as  the  nature  of  his  case  shall  re- 
quire and  as  shall  be  agreeable  to  equity  and  good  conscience. 


90  DRAFTING    THE    BILL.  [§  70. 

9.  Prayer  for  Process. 

May  it  please  the  court  to  grant  unto  your  orator  the  peo- 
ple's writ  of  subpana  issuing  out  of  and  under  the  seal  of  this 
honorable  court,  to  be  directed  to  the  said  William  Smith, 
therein  and  thereby  commanding  him,  on  a  certain  day  and 
under  a  certain  penalty  to  be  therein  inserted,  that  he  person- 
ally be  and  ajipear  before  this  honorable  court,  then  and  there 
to  answer  the  premises,  and  to  stand  to,  abide  by  and  perform 
such  order  and  decree  therein  as  to  this  court  shall  seem  proper, 
and  as  shall  be  agreeable  to  equity  and  good  conscience.  And 
your  orator  will  ever  pray. 

§  70.  A  form  of  hill  in  equity.— The  following  is  a  bill  in 
equity  in  an  assumed  case  for  specific  performance,  showing 
the  several  parts  of  the  bill;  those  originally  in  use  and  those 
generally  used  at  the  present  time: 

State  of  Michigan. 

Th«  addrees.        The  Circuit  Court  for  the  County  of  Wayne,  in 

Chancery. 

Your  orator  John  Jones,  of  the  city  of  Detroit 
The  introduction,  in  the  county  of  Wayne  and  state  of  Michigan, 
respectfully  represents  unto  the  court: 

I.  That  one  William  Smith  of  the  county  of 
Wayne,  on  the  10th  day  of  March,  1901,  claiming 
to  be  the  owner  of  and  in  possession  of  the  west 

T^remisesor    ij^lf  {^)  of  the  northeast  quarter  (i)  of  section 

ingpart.      .^  townsbip north  of  range  east, 

in  said  county  of  Wayne  and  state  of  Michigan, 
entered  into  a  certain  written  agreement  with  your 
orator  for  the  sale  of  the  said  described  premises, 
which  said  written  agreement  was  duly  executed 
and  delivered  by  the  said  William  Smith  to  your 
orator. 

II.  That  by  the  said  agreement  so  executed 
and  delivered  as  aforesaid,  the  said  William 
Smith  covenanted  and  agreed  for  himself,  his 
heirs,  executors  and  administrators,  for  and  in 
consideration  of  five  thousand  dollars  to  be  paid 
to  him,  the  said  William  Smith,  as  hereinafter 
mentioned,  Avell  and  truly  to  convey,  by  a  good 
and  sufficient  warranty  deed  in  fee  simple,  to 
your  orator,  his  heirs  or  assigns,  the  piece  or 
parcel  of  land  herein  above  described;  and  in 
consideration  whereof  your  orator  covenanted 
and  agreed  to  pay  to  the  said  William  Smith,  his 
heirs,  executors  or  administrators,  the  said  sura 


§  70.]  DRAFTING    THE    BILL.  91 

of  five  thousand  dollars  as  follows,  to  wit:  Five 
hundred  dollars  at  the  time  of  executing  and 
delivering  of  said  agreement,  which  was  then 
and  there  duly  paid  to  the  said  William  Jones, 
and  the  receipt  thereof  duly  acknowledged;  one 
thousand  dollars  in  six  months  from  the  delivery 
of  said  agreement,  and  the  remainder  of  said  five 
thousand  dollars,  as  follows:  thirty-five  hundred 
dollars  on  the  10th  day  of  March,  A.  D.  1902, 
with  interest  on  all  unpaid  amounts  as  by  the 
said  agreement,  ready  to  be  produced  as  this 
honorable  court  shall  direct,  will  more  fully  and 
at  large  appear;  a  copy  of  said  agreement  marked 
Exhibit  "A"  Is  hereto  attached  which  your  orator 
hereby  makes  a  part  of  this,  his  bill  of  complaint. 
III.  Your  orator  further  represents  that  com- 
plying with  the  terms  of  said  agreement  he  paid 
to  the  said  William  Smith  the  full  amount  of  said 
second  payment  mentioned  in  said  agreement 
upon  the  due  day  thereof,  to  wit,  the  sum  of  one 
thousand  dollars  with  the  interest,  due  on  the 
10th  day  of  September,  A.  D.  1901. 

lY.  Your  orator  further  represents  that  he  has 
always  been  ready  and  willing,  and  is  now  ready 
and  willing,  and  hereby  offers  to  fully  perform 
the  said  agreement  upon  his  part,  and  that  on 
the  10th  day  of  March,  1902,  undertaking  to  so 
perform  his  said  agreement  herein,  he  offered  to 
pay  the  full  amount  remaining  due  upon  said 
agreement  to  the  said  William  Smith,  and  then 
and  there  requested  the  said  William  Smith  to 
execute  and  deliver  to  him  a  good  and  sufficient 
warranty  deed  of  said  described  premises  therein, 
as  by  said  agreement  he  had  covenanted  to  do ;  but 
the  said  William  Smith  then  and  there  refused, 
and  still  does  refuse,  to  comply  with  his  agreement 
and  undertaking,  and  execute  and  deliver  to  your 
orator  said  deed. 

V.  But  now  so  it  is,  may  it  please  the  court, 
that  the  said  William  Smith,  combining  and  con- 
federating  with  divers    persons   at   present   un- 
known to  your  orator,   whose  names,  when  dis- 
covered, your  orator  prays  he  may  herein  insert 
The  confederal     with  proper  and  apt  words  to  charge  them  as 
ingpart.         p^p^ies  defendant,  and  contriving  how  to  injure 
(May  be  omitted.)  ^^^  yvrong  your  orator  in  the  premises,  he,  the 
said  William  Smith,  absolutely  refuses  to  comply 
with  his  said  contract  and  your  orator's  request, 


92 


DKAFTINO   THE    BILL. 


[§T0. 


Tba  charging 
part. 

(May  tM)  omitted.) 


The  juri<5clictional 
clause. 

(May  be  omitted.) 


The  interrogat- 
ing part. 

(Net  always  nec- 
essary.) 


Prayer  for  relief 


Prayer 
for  procesa 


and  at  times  pretends  that  be  did  not  execute 
and  deliver  the  said  agreement,  Exhibit  "A,"  as 
claimed  by  your  orator. 

VI.  That  the  defendant  sometimes  allep^es  and 
pretends  that  the  said  contract,  Exhibit  "A,"  is 
not  an  existing  and  binding  agreement  upon  hini, 
and  at  other  times  that  he  is  under  no  legal  obli- 
gation to  perform  said  contract,  whereas  your 
orator  charges  the  contrary  thereof  to  be  the 
truth,  and  that  the  said  agreement.  Exhibit  "A," 
is  a  legal  and  binding-  agreement,  and  should  be 
perforined  on  the  part  ot  the  said  defendant. 

A^II.  All  which  actings,  doings  and  pretenses 
of  the  defendant  are  contrary  to  equity  and  good 
conscience,  and  tend  to  the  manifest  wrong,  in- 
jury anil  oppression  of  your  orator  in  the  prem- 
ises. In  consideration  whereof,  and  inasmuch  as 
your  orator  is  entirely  remediless  in  the  premises 
according  to  the  strict  rules  of  the  common  law, 
and  can  only  have  relief  in  a  court  of  equity, 
where  mattei's  of  this  nature  are  properly  cogni- 
zable and  relievable. 

VIII.  To  the  end,  therefore,  that  the  said  Will- 
iam Smith,  and  the  rest  of  the  confederates  when 
discovered,  may,  upon  their  several  and  respective 
oaths  [or  without  oath,  their  answer  under  oath 
being  hereby  expressly  waived],  full,  direct  and 
perfect  answer  make  to  all  and  singular  the  mat- 
ters hereinbefore  stated  as  fully  and  particularly 
as  if  the  same  were  here  again  repeated,  and  they 
thereunto  particularly  interrogated. 

And  that  the  said  defendant  may  be  decreed 
speciUcally  to  perform  the  said  agreement  entered 
into  with  your  orator,  as  aforesaid,  and  make  a 
good  and  sufficient  deed  of  conveyance  to  your 
orator  for  the  said  described  premises  as  stipulated 
in  said  contract  and  pursuant  to  the  terms  of  said 
agreement,  and  that  your  orator  may  have  such 
other  and  further  relief  in  the  premises  as  the 
nature  of  his  case  shall  require  and  as  shall  be 
agreeable  to  equity  and  good  conscience. 

May  it  please  the  court  to  grant  unto  your  or- 
ator the  writ  of  subpoena  issuing  out  of  and  under 
the  seal  of  this  honorable  court,  to  be  directed  to 
the  said  William  Smith,  therein  and  thereby 
commanding  him  on  a  certain  day  and  under  a 
certain  penalty  to  be  therein  inserted,  that  he 
personally  be  and  appear  before  this  honorable 
court,  then  and  thei'e  to  answer  the  premises, 
and  to  stand  to,  abide  and  perform  such    order 


§§  71,  72.]  DRAFTING   THE    BILL.  93^ 

and  decree  therein  as  to  this  court  shall  seem 
proper,  and  as  shall  be  ao;recable  to  equity  and 
good  conscience.  And  your  orator  will  ever  pray. 

JoHK  Jones. 
X.  Y.  Z., 
Solicitor  and  of  counsel  for 
the  complainant. 

State  of  Michigan,  ) 

County  of  Wayne,  f 

On  this  1st  d'ay  of  May,  19(12,  personally  appeared  before 
me  the  above  named  John  Jones,  the  complainant  in  the  fore- 
going bill  of  complaint  by  him  subscribed,  and,  being  by  me 
duly  sworn,  said:  That  he  had  read  the  said  bill  and  knew 
the  contents  thereof,  and  that  the  same  was  true  of  his  own 
knowledge  except  as  to  the  matters  therein  stated  to  be  upon 
information  and  belief,  and  as  to  those  matters   he    believes 

them  to  be  true.  , 

Notary  Public, 
"Wayne  Co.,  Michigan. 

§  71.  General  observations  as  to  form. —  The  defendant  is 
not  usually  required  to  answer  under  oath,  and  the  language 
of  the  interrogating  part  of  the  bill,  where  the  confederating 
part  and  charging  part  are  not  used,  is  somewhat  different 
from  the  language  used  in  the  above  bill  of  complaint.  It 
should  be  said,  however,  that  no  fixed  form  or  language  is 
used  by  the  pleader  in  drafting  a  bill  of  complaint;  he  is 
simply  to  state  the  matters  necessary  to  be  alleged  in  language 
appropriate  and  fitting  to  the  case.  The  language  more  often 
used  in  the  interrogating  part  is  as  follows:  "To  the  end, 
therefore,  that  the  said  defendant  may  without  oath,  his  answer 
under  oath  being  hereby  expressly  waived,  full,  true,  direct  and 
perfect  answer  make  to  all  and  singular  the  matters  and  things 
hereinbefore  stated  according  to  the  best  of  his  knowledge,  re- 
membrance, or  information  and  belief."  [Then  following  the 
prayer  for  relief:]  And  that  the  said  defendant  may,  etc. 
[Stating  the  special  prayer  and  the  general  prayer  for  relief.] 

§  72.  The  filing  of  the  bill. —  The  bill  having  been  drafted, 
signed  by  counsel  and  complainant,  and  verified,  when  nec- 
essary, should  be  filed  in  the  office  of  the  register  in  chancery, 
who  is  usually  the  clerk  of  the  court,  and  has  the  custody  of 
the  pleadings  and  documents  in  the  chancery  causes  pending 
in  the  court.  In  the  United  States  courts  it  is  filed  in  the 
clerk's  office;  in  the  several  state  courts  this  officer  is  usually 
called  the  clerk. 


CHAPTER  VI. 


PROCESS  AND  DEFENDANTS  APPEARANCE. 


§  73.  The    origin    of    the   chancery 

subpcena. 
74.  The  writ  of  subpoena  and  its 

general  use. 
74.  The   form   of   the  writ  — How 

addresseil. 
70.  Service  of  process. 

77.  Service  upon  infant  defendant 

78.  Service  upon  lunatics. 
7'J.  Service  upon  prisoners. 

80.  Service  upon  married  woman. 

81.  Service  upon  corporations. 

82.  Service  upon  a  state. 

83.  By  whom  served. 

84.  Substituted  service. 

85.  Service     when     defendant     is 

without  the  jurisdiction. 


§  86. 


ea 


90. 
91. 

92. 

9a 

94. 

95. 
96. 


Validity    of    judgments    and 
decrees  based  on  service  of 
process  beyond  the  jurisdic- 
tion. 
Process  in  divorce  suit& 
Defective   service    waived   by 
appearance  or  admission  of 
service. 
Appearance 

How  appearance  is  entered. 
Actions  paramount   to   volun- 
tary appearance. 
Tlie  effect  of  appearance. 
Compulsory  appearance. 
How    appearance    entered    by 

persons  under  disability. 
Husband  and  wifa 
Appearance  by  corporation. 


§  73.  The  ori2:iii  of  tlie  chancery  suhixena.— The  writ  of 
subpoena  had  its  origin  in  invention  and  adoption  supported 
by  the  kinu"  rather  than  in  legislation  and  support  of  the  com- 
mons. It  was  said  to  be  "  a  novelty  devised  by  the  subtelty  of 
Chancellor  Waltham  "  (then  Bishop  of  Salisbury  and  Keeper 
of  the  Rolls)  "against  the  form  of  the  common  law,  whereby 
no  plea  could  be  determined  unless  by  examination  on  oath  of 
the  parties  according  to  the  form  of  the  law  civil  and  law  of 
holy  church  in  subversion  of  the  common  law."'  Sir  William 
Blackstone  claims  that  the  writ  is  the  result  of  a  strained  con- 
struction of  a  statute  by  John  AValtham.      At  an  early  time 


1  3  Blackstone,  sea  52;  1  Story.  Eq. 
Jur.  46;  3  Reeves'  Hist.  192-194.  It 
is  said  in  a  petition  of  the  commons 
to  the  king  they  declared  their  griev- 
ance because  of  the  use  of  the  writ; 
claiming  that  it  was  sued  out  of  chan- 
cery for  matters  determinable  at  com- 


mon law  "  which  were  never  granted 
or  used  before  the  time  of  the  late 
King  Richard,  when  John  Waltham 
(heretofore  .Bishop  of  Salisbury),  of 
his  craft,  made,  formed  and  com- 
menced such  innovation."  Parkers 
Hist,  of  Ch,  47,  48. 


§  74.]  PKOOESS    AND    DEFENDANT'S    APPEAKANOB.  95 

it  seemed  to  be  among-  the  duties  of  chancellors  to  devise  new- 
writs  to  provide  remedy  in  the  common-law  courts  in  cases 
where  no  remedy  was  before  provided.  To  facilitate  this 
work  and  to  relieve  the  apparent  restrictions  of  precedents, 
the  statute  2  Westm.,  13  Edw.  I.,  c.  24,  was  passed,  providing 
"whensoever  from  thenceforth  in  one  case  a  writ  shall  be 
found  in  the  chancery,  and  in  a  like  case  falling  under  the 
same  right  and  requiring  like  remedy  no  precedent  of  a  writ 
can  be  produced,  the  clerks  in  chancery  shall  agree  in  forming 
a  new  one;  and,  if  they  cannot  agree,  it  shall  be  adjourned  to 
the  next  parliament,  where  a  writ  shall  be  framed  by  consent 
of  the  learned  m  the  law,  lest  it  happen  for  the  future  that  the 
court  of  our  lord,  the  king,  be  deficient  in  doing  justice  to  the 
suitors."  I  Whatever  of  criticism  may  have  been  just  as  to  the 
invention  or  statutory  construction  of  Waltham,  his  construc- 
tion resulted  in  giving  efficiency  to  the  court  of  chancery,  and 
the  writ  of  subpoena,  now  used  to  bring  the  defendant  into 
court  to  answer  the  bill  of  complaint,  came  from  it. 

§  74.  T!ie  writ  of  subpceiia  and  its  general  use.— The  writ 
of  subpoena  is  the  first  process  of  the  court  of  equity.  It  is  is- 
sued by  the  register  in  chancery  (who  is  the  clerk  of  the  court) 
upon  the  filing  of  the  bill  of  complaint;  but  it  would  not  be 
proper  to  issue  the  writ  before  the  bill  is  filed,  and  if  it  should 
be  so  issued  it  would  be  an  irregularity  of  which  the  defendant 
might  take  advantage  by  striking  it  from  the  files;  but  if  he 
desired  to  do  so,  he  could  cure  the  irregularity  by  entering  his 
appearance  in  the  cause-  as  of  course.  Ko  application  to  the 
court,  or  to  any  officer  of  the  court,  need  be  made  for  it;  the 
mere  filing  of  the  bill  entitles  the  complainant  to  its  issuance. 

In  the  early  English  practice  the  writ  of  subpoena  did  not 
issue  immediately  upon  the  filing  of  the  bill,  but  after  the  bill 
had  been  filed  and  examined  and  the  relief  sought  by  the  bill 
determined  to  be  equitable  and  just,  the  writ  was  then  ordered 
to  be  issued.  Formerly  it  required  the  defendant,  under  a  heavy 
penalty,  to  appear  and  answer  the  complainant's  bill  of  com- 
plaint, and  a  failure  to  so  appear  was  adjudged  to  be  a  con- 
tempt of  court,  for  which  a  writ  to  bring  the  defendant  into 
court  might  issue,  and  if  he  was  not  found  and  the  writs  issued 

'3  Blackstone,  51,  52. 

2  1  Danl.  Ch.  PI.  &  Prac.  439,  note;  Crowell  v.  Botsford,  16  N.  J.  Eq.  459. 


9a 


PROCESS  AND  DEFENDANTS  APPEARANOB. 


[§74. 


so  returned,  them  "a  sequestration  issued  to  seize  all  his  per- 
sonal estate  and  the  profits  of  his  real  estate  and  detain  them 
subject  to  the  order  of  the  court;"  a  proceeding  which  would 
seem  to  be  resorted  to  not  so  much  that  the  defi'ndant  might 
be  brought  into  court,  but  rather  that  the  decree  might  be  sat- 
isfied.* 

No  such  proceedings  are  now  resorted  to  except  when  the 
bill  is  filed  for  discov^erjjOr  certain  discovery  is  sought  by  the 
bill  and  an  answer  insisted  upon  by  the  complainant.''  The 
writ  is  no  longer  considered  as  a  command  of  the  court  to  ap- 


13  Blackstone,  444  "But.  upon 
common  bills,  as  soon  as  they  are 
tiled,  process  of  subpoena  is  taken 
out,  which  IS  a  writ  commanding  the 
defendant  to  apjjear  and  answer  to 
the  bill,  on  pain  of  one  hundred 
pounds.  But  this  i.s  not  all,  for  if  the 
defendant,  on  service  of  the  sub- 
poena, does  not  appear  within  the 
time  limited  by  the  rules  of  the  court, 
and  plead,  demur,  or  answer  to  the 
bill,  he  is  then  said  to  be  in  contempt ; 
and  the  respective  processes  of 
contempt  are  in  successive  order 
awarded  against  him.  The  first  of 
which  is  an  attacliment,  which  is  a 
writ  in  the  nature  of  a  capias,  di- 
rected to  the  sheriff,  and  command- 
ing him  to  attach,  or  take  up.  the 
defendant,  and  bring  him  into  court. 
If  the  tiheritf  returns  that  the  de- 
fendant is  non  est  inventus,  then  an 
attachment  with  proclamations  is- 
sues, which,  besides  the  ordinary  form 
of  attachment,  directs  the  sheritf 
that  he  cause  public  proclamations 
to  be  made  throughout  the  country, 
to  summon  the  defendant,  upon  his 
allegiance,  personally  to  appear  and 
answer.  If  this  bo  also  returned 
wit. I  a  non  est  inventus,  and  he  still 
stands  out  in  contempt,  a  commis- 
sion of  rebellion  is  awarded  against 
him  for  not  obeying  the  king's  procla- 
mations according  to  his  allegiance; 
and  four  commissioners  therein 
named,  or  any  of  them,  are  ordered 


to  attach  him  where.'^oever  he  may 
be  found  in  Great  Liriti.in  as  a  rebel 
and  contemner  of  the  king's  laws 
and  government,  by  refusing  to  at- 
t^'nd  his  .sovereign  when  thereunto 
required;  since,  as  was  before  ob- 
served, matters  of  equity  were  orig- 
inally determint^d  by  the  king  in  per- 
son, assisted  by  his  council;  though 
that  business  is  now  devolved  upon 
his  chancellor.  If  upon  this  com- 
mission of  rebellion  a  non  est  inventus 
is  returned,  the  court  then  sends  a 
sergeant-at-armsin  quest  of  him;  and 
if  he  eludes  the  search  of  the  .ser- 
geant also,  then  a  sequestration  is- 
sues to  seize  all  his  personal  estate, 
and  the  profits  of  his  real,  and  to  de- 
tain them,  subject  to  the  order  of 
the  court  Sequestrations  were  first 
introduced  by  Sir  Nicholas  Bacon, 
lord  keeper  in  the  reign  of  Queen 
Elizabeth,  before  which  the  court 
found  some  difficulty  in  enforcing  its 
process  and  decrees.  Alter  an  order 
for  a  sequestration  issued,  the  plaint- 
iff's bill  is  to  be  taken  pro  confesso, 
and  a  decree  to  be  made  accordingly. 
So  that  the  sequestration  does  not 
seem  to  be  in  the  nature  of  process 
to  bring  in  the  defendant,  but  only 
intended  to  enforce  the  performance 
of  trie  decree." 

2  See  Bills  of  Discovery,  post.  §  11^; 
Jennison's  Ch.  Pr.  ..7;  1  ilarU.  Ch. 
Pr.  54. 


§  75.]  PROCESS    AND    DEFENDANT'S    APPEARANCE.  97 

pear,  but  rather  in  the  nature  of  a  notification  to  the  defendant 
that  the  bill  has  been  filed  and  the  suit  commenced,  and  if  he 
would  defend  he  must,  within  the  prescribed  time, appear  and 
make  his  defense.  The  nature,  efficiency  and  form  of  the 
writ  is  almost  entirely  fixed  and  regulated  by  rules  of  the 
court  and  by  statutes.^  Indeed,  in  many  of  the  states  which 
have  adopted  the  so-called  "Eeformed  American  Procedure," 
or  "Code  Practice,"  as  it  is  sometimes  called,  the  process  for 
the  appearance  of  the  defendant  is  no  longer  called  the  writ 
of  subpoena,  but  a  summons  is  used  in  its  stead  to  notify  the 
defendant  that  he  may  appear  and  answer  the  bill  of  com- 
plaint. The  writ  of  subpoena  or  summons  is  now  in  general 
use  both  in  this  country  and  in  England.^ 

§  75.  T!je  form  of  the  writ  —  How  addressed. —  The  form 
of  the  writ  is  somewhat  varied  from  the  original  chancery 
subpoena  in  most  jurisdictions,  and  is  largely  controlled  by 
statutes  and  rules  of  court.'  It  has  now  come  to  be  in  the 
nature  of  a  notification  of  the  pendency  of  the  suit,  which  the 
defendant  may  appear  and  answer  within  a  certain  time  fixed 
by  the  rules  and  practice  of  the  court.*     In  the  United  States 

1  U.  S.  Eq.  Rules,  7-12;  U.  S.  Rev.  Stat.,  sec  911;  Riopelle  v.  Doellner,  26 
Mich.  103;  McCreery  v.  Circuit  Judge,  93  Mich.  4C3;  Proctor  v.  Plumer,  113 
Mich.  .S93. 

2  For  the  rules  and  practice,  see  Court  Rules  and  Codes  of  Practice  and 
Statutes  of  the  different  states. 

3U.  S.  Eq.  Rule  7;  U.  S.  Supreme  Ct  Rule  5;  U.  S.  Rev.  Stat.  911. 
*  In  Michigan  the  following  form  is  provided  by  rule: 

Sta-te  of  MicmaAN,  )  ,     ^,. 

The  Circuit  Court  for  the  County  of  Wayne,  f  ^^  "-nancery. 

In  tlie  Name  of  the  People  of  the  State  of  Michigan. 
To  William  Smith, 

Greeting:  You  are  hereby  notified  that  a  bill  of  complaint  has  been 
filed  against  you  in  the  circuit  court  for  the  county  of  Wayne,  in  chan- 
cery, by  John  Jones  as  complainant,  and  that  if  you  desire  to  defend  the 
same,  you  are  I'equired  to  have  your  appearance  filed  or  entered  in  the 
cause,  in  accordance  with  the  rules  and  practice  of  the  court,  in  person  or 
by  solicitor,  within  fifteen  days  after  service  of  this  subpoena  upon  you. 
Hereof  fail  not,  under  the  penalty  of  liaving  said  bill  taken  as  confessed 
against  you. 

The  return  day  of  this  writ  is  the day  of ,  A.  D. . 

Witness,  the  Honorable  ,  circuit  judge,  at  the ,  this 

day  of ,  A.  D. .  ,  Register. 

Underwriting:  A   personal  decree   is  sought  against   the    defendants 

, ,  and ,  and  the  bill  is  filed  to  reach  interests  in 

property,  and  not  to  obtain  any  further  relief  against  the  remainder  of  the 

defendants.  , 

Solicitor  for  Complainant. 

Business  address,  , 

7 


98  PROCESS    AND    DEFENDANT'S    APPEAEANCE,  [§  76. 

court,  however,  it  still  embodies  a  command  to  appear  and 
answei  the  bill  of  complaint  under  a  penalty  set  forth  in  the 
writ.^ 

The  writ  should  be  directed  to  the  defendant  named  in  the 
bill  of  complaint  and  to  no  other  person,  and  if  the  writ  is 
brought  against  a  defendant  in  a  representative  capacity  he 
should  be  so  described;  if  against  one  in  an  individual  capac- 
ity and  also  in  a  representative  capacity,  he  should  be  so 
described  in  the  writ,  for  he  must  so  defend,  as  relief  is  so 
sought  against  him.  The  writ  is  made  returnable  upon  a  cer- 
tain day  fixed  by  the  rules  of  practice  of  the  court  or  by 
statute;  but  this  command,  or  notice,  to  personally  appear  and 
answer  the  bill  of  complaint  on  the  day  mentioned  in  the 
w^rit,  which  is  the  return  day,  does  not  mean  that  the  defend- 
ant shall  personally  appear  at  the  bar  of  the  court  on  that  day, 
but  rather  that  within  the  time  prescribed  by  the  practice  of 
the  court  he  shall  enter  his  appearance  in  the  case  personally, 
or  by  counsel,  in  the  office  of  the  clerk  or  register  of  the  court. 

§  76.  Service  of  process. —  The  chancery  subpoena,  or  sum- 
mons, should  be  personally  served  upon  the  defendant.  The 
manner  of  service  is  generally  fixed  by  statute  or  the  rules  of 

1  The  following  is  the  form  in  use  in  the  circuit  court  of  the  United 
States: 

Circuit  Court  of  the  United  States  of  America,  ) 

For  the  Sixth  Circuit  and  Eastern  District  >■  Sitting  in  Chancery, 

of  Michigan,  Southern  Division.  ) 

The  President  of  the  United  States  of  America 

[Seal  of    To  William  Smith,  a  citizen  of  the  State  and  resident  of  the 
Court.]  Eastern  District  of  Michigan: 

You  are  hereby  commanded  to  be  and  appear  in  the 
circuit  court  of  the  United  States  of  America,  for  the  sixth  circuit  and 
eastern  district  of  Michigan,  sitting  in  chancery  before  the  judges  there- 
of, at  the  circuit  court  room,  in  the  city  of  Detroit,  on  the  first  Monday  of 
December  next  ensuing,  then  and  there  to  answer  unto  a  bill  of  complaint 
exhibited  against  you  as  defendant  by  John  Jones  as  complainant.  And 
this  you  shall  in  no  wise  omit  under  the  penalty  of  one  thousand  dollars. 

Witness,  the  Hon.  Melville  W.  Fuller,  chief  justice  of  the  United  States, 
this  second  day  of  November,  in  the  year  of  our  Lord  one  thousand  nine 
hundred  and  two,  and  of  the  independence  of  the  United  States  the  one 
hundred  and  twenty -sixth. 

F.  G.  H.,  Clerk. 

Memorandum, —  The  above  named  defendant  is  required  to  enter  his 
appearance  in  this  suit  with  the  clerk  of  this  court,  at  his  office  in  the  city 
of  Detroit,  on  or  before  the  day  on  which  this  writ  of  subpoena  is  return- 
able, otherwise  the  bill  of  complaint  in  this  cause  will  be  taken  pro  con- 
fesso  against  said  defendant. 

F.  G.  H.,  Clerk. 


§§  77,  78.]     PROCESS  AND  defendant's  appearance.  9^ 

practice  adopted  by  the  court  from  which  it  issues.  In  many 
of  the  states  which  have  adopted  the  code  practice,  the  sum- 
mons requiring  the  defendant  to  appear  and  answer  the  bill  is 
attached  to  a  copy  of  the  bill  of  complaint,  and  both  are  re- 
quired to  be  served  upon  the  defendant;  but  in  the  states  fol- 
lowing the  original  chancery  practice,  the  subpoena  is  person- 
ally served  by  showing  the  defendant  the  original  writ,  with 
the  seal  of  the  court  thereon,  and  giving  him  a  copy  of  the 
same.  Upon  this  writ  is  usually  inscribed,  and  in  most  cases 
it  is  required,  the  name  and  address  of  complainant's  counsel, 
so  that  the  defendant  may  know  upon  whom  to  serve  his  notice 
of  appearance  in  the  cause  should  he  desire  to  appear  or  defend 
the  suit. 

§  77.  Service  upon  infant  defendant.— Where  the  bill  is 
filed  against  an  infant  defendant  his  defense  will  be  made  by 
a  guardian  appointed  ad  litem,  but  the  writ  of  subpoena  should 
be  served  personally  upon  the  infant.  It  has  been  recommended 
that  in  such  case  the  parents  of  the  infant,  or  those  having  the 
care  and  custody  of  him,  should  be  notified,  but  there  can  be 
no  great  danger  of  any  advantage  being  taken  in  such  cases; 
for  wherever  an  infant  is  made  a  defendant  it  is  the  duty  of 
the  court  to  see  that  he  is  properly  represented,  and  no  decree 
would  be  entered  against  him  until  a  guardian  had  been  ap- 
pointed and  the  question  as  to  whether  he  had  a  just  defense 
had  been  settled.  Indeed,  it  has  been  held  that  neither  a  guard- 
ian ad  litem  nor  a  general  guardian  can  waive  service  of  process 
for  his  infant  ward.^ 

§  78.  SerTice  upon  lunatics.— Where  a  lunatic  is  made  a 
defendant  in  the  bill  of  complaint,  if  he  has  been  adjudged  a 
lunatic,  service  may  be  made  personally  upon  the  lunatic  and 
also  upon  his  guardian  or  his  committee  (where  the  interests 
of  lunatics  are  looked  after  by  a  committee),  for  in  such  pro- 

1  Massie  v.  Donaldson,  8  Ohio,  377;  control  of  such  minor;  in  some  of  the 

1  Barb.  Ch.  Pr.  51 ;  Waldo  v.  Richter,  states  this  is  the    law   by   statute. 

17  lud.  6:^0.     lu  some  of  the  states  it  Sanders  v.  Godley,  23  Ala,  473;  Pugh 

has  been  held  that  the  writ  should  v.    Pugh,   9    Ind.    133;    Hemmer  v. 

be  served  by  delivering  a  copy  thereof  Wolfer,   124  111.   435,  11   N.   E.  885; 

to  the  infant  personally,  and  also  to  Hendrickson  v.  Canter  (Ky.,  1899),  49 

his  father,  mother  or  guardian,  or,  if  S.  W.  188;  Estes  v.   Bridgforth,  114 

there  be  none  within  the  state,  then  Ala.  221,  21  So.  512;  Wells  s.  Mortgage 

to  any  person  having  the  care  and  Co.,  109  Ala.  430. 


100  PBOCESS    AND    DEFENDANT'S    APPEARANCE.        [§§  79-81. 

ceedings  the  guardian,  or  committee,  would  necessarily  bo 
made  parties  defendant  to  the  suit;  but  if  the  defendant  has 
not  been  adjudged  a  lunatic  the  subpoena  should  besiTved  upon 
him  personally,  for  in  such  case  there  is  nothing  to  show  that 
the  defendant  is  incompetent.' 

§  79.  Service  upon  prisoners. — If  the  defendant  be  a  pris- 
oner for  a  term  of  years,  the  subpoena  may  be  served  upon  him 
personally,  and  service  upon  the  keeper  of  the  prison  will,  upon 
application,  be  held  good  service  upon  the  prisoner  in  his  cus- 
tody.'^ 

§  SO.  Service  upon  married  women, —  It  has  generally  been 
held  that  where  the  husband  and  wife  were  joint  defendants 
and  the  bill  did  not  seek  for  a  decree  affecting  the  separate 
property  of  the  wife,  service  of  the  writ  might  be  made 
upon  the  husband  for  both  husband  and  wife;  but  wlieru  the 
bill  of  complaint  is  filed  seeking  relief  as  to  the  sole  and  sej)- 
arate  property  of  a  married  woman,  the  subpoena  must  be 
served  personally  upon  her;  and  this,  of  course,  would  be  the 
rule  if  the  suit  were  instituted  by  the  husband  against  the  wife.' 

§81.  Service  upon  corporations. —  Where  the  bill  is  filed 
against  a  corporation  the  matter  of  service  of  the  subpoena 
upon  the  corporation  is  generally  prescribed  by  statute,  and  in 
most  of  the  states  it  is  provided  that  it  shall  be  particularly 
served  upon  the  president,  the  manager  or  secretary,  or  some 
principal  odicer;  the  statute  providing  the  manner  of  service 
must  be  strictly  followed.  The  corporation  may  appear  in  the 
case  by  its  solicitor  the  same  as  any  other  defendant,  and  its 
appearance  in  the  cause,  when  regular,  will  waive  service  of 
process.     Where  the  defendant  is  a  foreign  corporation  the 

1  1  Barb.  Ch.  Pr.  52;  and  see  cases  ing  retained  by  the  husband,  and 
cited  in  note  12  to  §  52.  judgment  of  foreclosure  was  entered, 

2  Johnson  v.  Johnson,  Walk.  Ch.  that  the  wife  could  not,  after  her 
(Mich.)  309,  where  it  was  held  that  husband's  death,  avoid  the  judj^ment 
service  on  the  keeper  of  the  prison,  on  the  ground  that  she  was  not 
under  the  circumstances,  was  the  served  with  process  and  did  not  ap- 
only  service  that  could  be  made.  pear  in  the  action.     In  Robinson  v. 

>  In  Foote  v.  Lathrop,  53  Barb.  183,  Cathcart,  2  Cranch  (U.  S.),  590.  Fed. 

it  was  held,  wlieresuit  was  brought  Cas.  No.  11,946,  it  was  held  that,  when 

to  foreclose  a  mortgage  against  the  husband  and  wife  are  co-defendants, 

husband  and  wife  who  executed  it  service  upon  the  husband  alone  is 

jointly,  and  an  attorney  entered  ap-  sufficient.     Gladden  v.  Am.  Mortg. 

pearance  in  the  action  for  both,  be-  Co.,  80  Ala.  270. 


§§  82,  83.]     PKOCEss  AND  defendant's  appearance.  101 

manner  of  service  is  generally  prescribed  by  statute  in  the  dif- 
ferent states.^ 

§  82.  Service  npon  a  state.— It  has  been  held  that  where  a 
bill  was  filed  by  one  state  against  another,  the  subpoena  must 
be  served  upon  the  governor  and  the  attorney-general  of  the 
defendant  state,  and  that  a  service  upon  the  governor  alone, 
there  being  no  appearance  entered  for  the  defendant,  will  not 
entitle  the  court  to  proceed.^ 

§  83.  By  whom  served.—  In  the  federal  court  the  writ 
must  be  served  by  the  United  States  marshal,  his  deputy,  or 
by  some  one  especially  appointed  by  the  court  to  make  such 
service.  In  the  state  courts  the  writ  may  be  served  by  the 
sheriff  of  the  county  in  which  it  issues,  or  by  his  deputies,  and 
in  most  jurisdictions  service  may  be  made  by  any  competent 
person  who  is  not  a  party  or  interested  in  the  case.  If  the 
writ  is  served  by  an  officer,  as  a  United  States  marshal  or  his 
deputies,  or  a  sheriff  of  a  county  or  his  deputies,  and  within 
the  officer's  bailiwick,  a  certificate  of  such  service  indorsed 
upon  the  writ  is  a  sufficient  return  and  proof  of  service  thereof; 
but  if  it  is  served  by  a  private  person,  or  a  person  not  an  offi- 
cer, authorized  by  the  court  to  make  such  service,  the  service 
must  be  shown  by  the  affidavit  of  the  person  serving  it;  but 
the  certificate  of  service  of  the  officer,  or  the  affidavit  of  the 
person,  if  so  served,  is  not  conclusive  proof  of  service  —  it  is  only 
prima  facie  proof;  but  if  it  is  not  disputed  it  will  be  sufficient. 
The  defendant  may,  however,  attack  the  certificate  of  service, 
or  the  affidavit,  and  disprove  the  same  at  any  time  before  ap- 
pearance in  the  cause,'  but  the  certificate  or  affidavit  of  service 
cannot  be  attacked  by  extraneous  evidence  if  it  appears  to  be 
sufficient  upon  its  face.* 

1  In  Harriman  v.  Railway  Co.,  173  Corapagnie,  etc.,  76  Fed.  425;  Hess  v. 

Mass.  28,  53  N.  K  156,  it  was   held  Adamant  Mfg.  Co.,  66  Minn.  79,  68  N. 

that  a  motion  to  dismiss  for  want  of  W.  774 

proper  service  on  defendant  corpora-  2  n^^  Jersey  v.  New  York,  28  U.  S. 

tion  was  properly  denied  where  the  (3  Pet.)  461. 

service  was  had  upon  the  assistant  «  Newman   v.  Bank,  92  IlL    App. 

treasurer,  and  no  plea  in  abatement  638;  Slinglufif  v.  Gainer,  49  W.  Va.  7, 

was  filed,  it  being  impossible  to  know  37  S.  E.  771 ;  Printing  Press,  etc.  Co. 

that  the  person  served  was  not  an  v.  M.  L.  &  Co.,  50  Neb.  283, 69  N.  W.  774. 

oiBcer  having  charge  of  the  defend-  '•Sheets  v.  Railway  Ca,  25  Pa.  Co. 

ant's  business.     Cone  v.  Tuscaloosa  Ct.  25;  Wilcher  v.  Robertson,  78  Va. 

Mfg.  Co.,  76  Fed.  891;  De  Castro  v.  602;  Gilmore  v.  Ham,  10  N.  Y.  Sup.  48. 


lU2         PROCESS  AND  DEFENDANT'S  APPEAKANOB.       [§  SL 

In  Eureka  v.  Bresnahan^  the  supreme  court  of  Michigan 
say :  "  It  is  a  well-settled  principle  of  law  that  the  judgment 
of  a  court  which  has  jurisdiction  of  the  person  and  sul)j(!ct- 
matter  is  binding  until  reversed,  and  cannot  be  attacked  col- 
laterally. No  offer  was  made  to  show  that  the  court  had  no 
jurisdiction  over  the  person  of  defendant  or  subject-matter; 
on  the  contrary,  the  record  showed  due  service,  and  the  court 
had  jurisdiction  of  the  subject-matter.  The  record,  therefore, 
imported  absolute  verity,  and  could  not  be  contradicted.  But 
this  rule  applies  only  to  parties  and  their  privies.  It  does  not 
apply  to  such  third  persons,  or  strangers  to  the  record,  as  would 
be  prejudiced  in  regard  to  some  pre-existing  right  if  the  judg- 
ment were  given  full  credit  and  effect." 

The  return,  if  defective,  may  at  any  time  be  amended  to 
agree  with  the  facts  of  the  service,  and  it  has  been  held  that 
it  may  be  so  amended  by  an  order  nunc  pro  tunc  entered  even 
after  judgment  is  r.  ndered.'^ 

§  84.  Substituted  service.—  By  statute,  in  some  of  the 
states,  the  process  may  be  served  by  leaving  a  copy  with  some 
competent  person  at  the  defendant's  place  of  residence;  this 
is  called  substituted  service,—  that  is  to  say,  it  is  substituting 
service  of  process  upon  some  other  person  for  the  defendant; 
but  in  such  cases  the  statute  must  be  strictly  followed,  and  the 
conditions  authorizing  such  a  service  must  be  shown  to  exist, 
otherwise  such  service  will  not  be  sustained. 

In  Settleriiier  v.  Sullivan »  the  statute  required  that  in  actions 
in  j>erso7iam  service  should  be  made  by  the  sheriff  delivering 

166  Mich.  491.  b}'   relation    from    the   time  of  tlie 

2Deutscli   Koemisch  Katholischer  original    return.     The   law,   to   this 

Cent.  Verein   v.  Lartz,  91   111.  App.  extent,  is  too  familiar  to  require  any 

255,   affirmed,  61    N.  E.  487;  Lake's  citation  of  authority.     We  think  it 

Petition,  15  R.  L  628.     "Courts  are  is  also  perfectly  well  settled  that  an 

in  the  habit  of  allowing  their  officers  officer  may  be  permitted  to  amend 

to  amend  their  returns  almost  as  a  after  his  term  of  office  has  expired." 

matter  of  course,  for  the  purpose  of  "Williams  v.  Weaver,    101   N.  C.   1; 

sustaining  proceedmgs  before  them,  Jeffries  v.  Rudloff,  73  Iowa.  60;  Com- 

upon  being  satisfied  that  the  amend-  raercial,  etc.  Co.  v.  Everhart,  88  Va. 

ment  is  according   to   fact,   unless  952;  State  v.  Martin,  38  W.  Va.  568^; 

new  rights  have  arisen  founded  on  Stealman   v.  Greenwood,  113  N.  C. 

the  error  or  defect;  for  the  amend-  355;  Grady  v.  Railway  Co.,  116  N.  C. 

ment  does  not  change  the  fact,  but  952. 

only   supports  it  by  new  evidence.  3  97U.  S.  444;  Mitchell,  etc.  Co.  v. 

The  amendment  duly  made  operates  O'Neil,  16  Wash.  108,  47  Pac.  235. 


§  84.]       PROCESS  AND  DEFENDANT'S  APPEARANCE.         103 

to  the  defendant  personally,  at  his  dwelling-house  or  place  of 
abode  a  copy  of  the  complaint  and  notice  to  answer;  or,  if  he 
cannot  be  found,  to  some  white  person  of  his  family  above  the 
affe  of  fourteen  years.     The  copy  of  the  complaint  was  deliv- 
ered to  the  wife  of  the  defendant,  who  was  a  white  woman 
over  the  ao-e  of  fourteen  years,  but  it  contained  no  statement 
that  the  defendant  could  not  be  found.     Judgment  was  ren- 
dered against  the  defendant  upon  default.     It  was  held  that 
the  court  acquired  no  jurisdiction  by  such  a  service  over  the 
person  of  the  defendant  and  that  the  judgment  was  void;  that 
such  substituted  service  can  only  be  made  where  the  conditions 
upon  which  it  is  permissible  are  shown  to  exist,  and  that  the 
inability  of  the  sheriff  to  find  the  defendant  cannot  be  inferred 
but   must  affirmatively  appear;  the    court   citing  Galj>in   v. 
Paqe:t  and  quoting  from  the  opinion  as  follows:  "If  it  appears 
from  the  return  of  the  officer,  or  the  proof  of  service  contained 
in  the  record,  that  the  summons  was  served  at  a  particular 
place,  and  there  is  no  averment  of  any  other  service  it  will 
not  be  presumed  that  service  was  also  made  at  another  and 
different  place;  or  if  it  appear  in  like  manner  that  the  service 
was  made  upon  a  person  other  than  the  defendant,  it  will  not 
be  presumed,  in  the  silence  of  the  record,  that  it  was  made 
upon  the  defendant  also."^     But  where  the  defendant  appears 
especially  for  the  purpose  of  taking  advantage  of  the  defective 
service  by  motion,  he  will  not  be  held  to  have  waived  the  de- 
feet  nor  will  he  be  held  to  have  answered  the  mandate  ot  the 
wriV  but  the  court  would,  no  doubt,  in  its  discretion,  be  au- 

no  Won  m  «^^366  Wis.  526,  and  other  cases.     It  was 

idf:  V  HeclscL80Fed.742;  said  in  Adams  v.  Circuit  Jud.e,  98 

Le  Grand  V.  Fairall.  86  la.  211;  Ford  Mich.  51,  ''substituted  service js  not 

V  Coleman  41  Miss.  651;  MuUins  v.  favored,  and  all  necessary  facts  to 

Larks    Is  Miss.  129.     In  Knox   v.  confer    jurisdiction    must    affirma- 

Miner  18  Wif 397,  it  was  held  that  tively  appear  upon  the  record;  and 

!erv  ce  ofa  summons  by  leaving  a  not  only  must  the  statutory  affidavit 

cotw  with  the  wife  of  the  defendant  have   been   made,  but  it  must  be  a 

arhisusua   place  of  abode,  it  not  ap-  part  of  the  record      The  recital  of  an 

real!,  however,  from  the  affidavit  ^^^^^  "^^T^^^ 

t^::^:':^:^^^^  rerKi!U.  Harrington,  U  Mich. 

^Z  Sid tV^-  -^^    "^Kinsey  v.  Burgess,  et.  Wor^,^ 
569;  wLtherbee  V.  Weatherbee,  20    Ohio  Dec.  446;    American  Trust  & 


104         PROCESS  AND  DEFENDANT'S  APPEAEANCE.       [§  S5. 

tborized  to  order  that  the  defendant  shall  enter  his  appearance 
generally  in  the  case  if  the  question  of  jurisdiction  be  decided 
against  hira.^ 

§  85.  Service  when  defendant  is  without  the  jurisdiction.— 
It  is  conceded  that  a  state  may,  by  statute,  prescribe  methods  for 
effecting  service  upon  parties  upon  whom  personal  service  can- 
not be  obtained  within  the  state.^  It  seems  to  be  conceded 
also  that  the  law-making  power  of  each  government  has  su- 
preme control  over  the  methods  by  which  persons  against 
whom  suits  are  sought  to  be  instituted  in  their  courts  shall  be 
notified,  so  as  to  give  jurisdiction  to  the  court  whether  the 
notice  be  personal  or  constructive.' 

In  Mackay  v.  Gordon^  the  court  say:  "Every  independent 
government  is  at  liberty  to  prescribe  its  own  methods  of  judi- 
cial process,  and  to  declare  by  what  forms  parties  shall  be 
brought  before  its  tribunals.  But  in  the  exercise  of  this  power, 
no  government,  if  it  desires  extra-territorial  recognition  of  its 
acts,  can  violate  those  rights  which  are  universally  esteemed 
fundamental  and  essential  to  society."  It  is  generally  pro- 
vided that  such  service  shall  be  had  by  order  for  publication 
obtained  from  the  court  where  the  suit  is  pending.  This 
order  is  usually  obtained  upon  proof  by  alRdavit  of  the  party 

Savings  Bank  v.  Pack,  Woods  &  Co..  Hale  v.  Hale,  146  111.  227.     But  if  de- 

70  111.  App.  177;  affirmed,  172  111.  192.  fendant  was  only  temporarily  out  of 

iHervey  v.  Hervey.   56  N.   J.  Ch.  the  state.     Spinney  v.   Spinney,  87 

166,  424.  38  Atl.   767.     In   Edgell  v.  Me.  484.     Such  statutes  are  constitu- 

Felder,  28  C.  C.  A.  (U.  S.)  382,  84  Fed.  tional.     McLaughlin  v.  McCrory,  55 

69,  parties  were  held  to  have  gener-  Ark.  442;  Taylor  v.  Ormsby,  66  la. 

ally  appeared   in  the  cause   where  109;  Shepherd  v.  Ware,  46  Minn.  174 

they  entered  a  special  appearance,  Irvine  v.  Leyh,  124  Mo.  361;  Mutual 

filed  motions  to  dismiss  for  want  of  etc.  Ins.  Co.  v.  Pinner,  43  N.  J.  Eq.  52 

jurisdiction,    and   want    of    equity,  Coffin  v.  Lesster.  36  Hun  (N.  Y.),  347, 

and  to  discharge  a  receiver,  dissolve  ^jjess  v.  Cole,  23  N.  J.  Law,  116 

a  temporary  injunction  for  want  of  Moulin  v.  Ins.  Co.,  24  N.  J.  Law,  222 

jurisdiction,  and  because  no  notice  Murray  v.  Murray,  115  Cal.  266,  47 

had  been  given  of  the   application  Pac.  37,  37  L.  R  A.  626.  In  Wisconsin, 

for  injunction.   McCoy  v.  Stockman,  held  there  must  be  verified  complaint 

146  Ind.   668;   Fowler  v.  Brown,  51  on  file  when  order  for  publication 

Neb.  414.  made.     Oelbermann  v.  Ide,  93  Wis. 

2  Fuller  v.   Foote,    56    Conn.   341;  669, 68  N.  W.  393.    Courts  will  strictly 

Jones  V.  Dillihanty,  68  Vt.  490;  Craw-  construe.   Garrett  v.  Strubel,  57  Kan. 

ford  v.  Foster,  28  U.  S.  App.  576,  84  508,  46  Pac.  943;  Hardester  v.  Shar- 

Fed.  939.     In  Illinois,    held   applica-  retts.  84  Md.  146,  34  AtL  1122. 

ble  when  defendant  was  an  infant.  ♦  34  N.  J.  Law,  286-299. 


§  8G.]       PROCESS  AND  defendant's  APPEARANCE.         105 

complaining  and  others,  if  required,  that  after  due  diligence 
the  defendant  cannot  be  found  within  the  state;  that  he  is 
secreted  within  the  state,  or  is  residing  in  some  other  state  or 
foreign  country.  Proof  of  service  must,  however,  follow  the 
requirements  of  the  statute,  and  all  the  facts  must  affirmatively 
appear  or  such  service  will  be  void.^  Should  it  appear,  how- 
ever, by  affidavit,  that  the  defendant  was  not  a  resident  of  the 
state,  but  that  he  is  a  resident  of  some  other  state  or  country, 
and  that  by  reason  of  such  foreign  residence  a  subpoena  could 
not  be  served  upon  him,  the  order  for  publication  may  issue 
without  attempting  to  serve  a  subpoena,  for  such  an  attempt 
would  be  vain.2 

§  86.  Validity  of  judgments  and  decrees  based  on  service 
of  process  beyond  the  jurisdiction.— The  court  of  a  state 
has  no  jurisdiction  beyond  the  state  limits,  or  the  limits  fixed 
by  the  legislative  or  constitutional  authority  creating  it,  nor 
can  a  state  by  legislation  extend  the  jurisdiction  of  its  courts 
into  another  state.  It  therefore  follows  that  courts  have  no 
jurisdiction  over  persons  or  property  in  another  state,  but 
their  jurisdiction  in  that  respect  is  confined  to  the  persons  and 
property  within  their  own  state  limits;  therefore,  if  the  pro- 
ceeding is  one  in  personam,  jurisdiction  in  such  case  can  be 
obtained  by  the  court  when  the  person  is  served  with  process 
within  its  jurisdictional  limits;  but  if  the  proceeding  is  one  in 
rem,  that  is,  against  the  property  of  the  defendant,  the  court 
where  the  property  is  situated  can  obtain  jurisdiction  over  it 
in  the  proceeding,  even  though  it  is  owned  by  a  non-resident; 
and  so  jurisdiction  to  render  a  valid  judgment  in  a  proceeding 
against  such  property  may  be  acquired  by  service  upon  its 
owner  outside  the  state,  but  such  a  judgment  or  decree  must 

iDue  diligence  in  making  service  nary  to  an  order  for  the  appearance 
of  subpoena  was  held  not  to  be  ex-  of  a  non-resident,  or  absent  defend- 
ercised  unless  the  effort  to  serve  it  ant,  must  state  every  fact  necessary 
continued  so  long  as  service  can  law-  to  give  the  officer  jurisdiction  to 
fully  be  made.  Soule  v.  Hough,  45  make  the  order.  In  New  York  Bap- 
Mich.  418.  An  affidavit  of  uon-  tist  Union  Ass'n  v.  Atwell,  95  Mich, 
residence  was  held  to  be  a  prereq-  239,  it  was  held  that  the  order  of  pub- 
uisite  essential  to  an  order  for  the  lication  against  a  non-resident  de- 
appearance  of  a  non-resident  defend-  fendant  must  be  based  upon  facts 
ant.  Piatt  v.  Stuart,  10  Mich.  260.  existing  at  the  time  it  is  made. 
In  Colton  V.  Rupert,  60  Mich.  318,  it  2Torrans  v.  Hicks,  32  Mich.  307. 
was  held  that  the  affidavit  prelimi- 


106 


PROCESS  AND  DEFENDANT'S  APPEARANCE. 


[§86. 


depend  for  its  satisfaction  upon  the  res,  the  property  against 
which,  or  concerning  which,  it  proceeded. 

In  Pennoyer  v.  JVef^  the  court  say:  "The  law  assumes 
that  property  is  always  in  possession  of  its  owner,  in  person  or 
by  agent,  and  it  proceeds  upon  the  theory  that  its  seizure  will 
inform  him,  not  only  that  it  is  taken  into  the  custody  of  the 
court,  but  that  he  must  look  to  any  proceedings  authorized  by 
law  upon  such  seizure  for  its  condemnation  and  sale.  .  .  . 
In  other  words,  such  service  may  answer  in  all  actions  which 
are  substantially  proceedings  in  rem.'''' 

In  Biekerdike  v.  Allen^  the  court  say:  "A  proceeding  in 
rem  is  not  merely  a  direct  proceeding  against  property,  but  any 
action  between  the  parties  where  the  direct  object  is  to  roach 
and  dispose  of  property  owned  by  them  or  of  some  interest 
therein.  For  example,  suits  by  attachment  against  the  prop- 
erty of  debtors,  suits  for  the  partition  of  land,  to  foreclose 
mortgages,  to  enforce  liens  or  contracts  respecting  property, 
may  be  regarded  as  proceedings  in  ;vm  so  far  as  they  affect 


1 95  U.  S.  714    In  Anheuser-Busch, 
etcj.  Co.  V.  Peterson,  41  Neb.  897,  tlie 
court  say:    "Where,   liowever,   the 
purpose  of  an  action  is  to  determine 
the  personal  right  of  the  parties  and 
to   enforce  against   the    defendant 
a  personal  liability  merely,   accord- 
ing to  a  fundamental  principle   of 
our  jurisprudence,  personal   service 
within  the  state  where  the  action 
is  pending  is  essential  to  confer  juris- 
diction   upon    the    court."      Story's 
Conflict  of  Laws,  sec.  539;  Cudabac 
V.  Strong,  67  Miss.  705;  Lawrence  v. 
Smith  etal,  5  Mass. 362;  Jacobs,  etc.  v. 
Mellen,  14  Mass.  131;  Ford  v.  Adams, 
54  Ark.  137;  Kelly  v.  Insurance  Co., 
82  Iowa,  137.    Held,  "  that  courts  of  a 
state  cannot,  by  the  service  of  its 
process  upon  one  beyond  the  terri- 
torial   limits  of   the  state,  acquire 
jurisdiction    to    render   a    personal 
judgment  against  him."     Denny  v. 
Ashley,  12  Colo.  165.  In  a  case  where 
a  bill  was   filed   to   remove  a  cloud 
from    title    to  land   situate  within 
the  jurisdiction  of  the  court,  it  was 


held  that  service  in  the  state  of  a 
copy  of  the  bill  andnotice  would  give 
the  court  jurisdiction  over  the  proi>- 
erty,  the  subject  of  the  litigation, 
within  the  state,  but  would  not  be 
suflicient  for  the  court  to  render  a 
personal  decree  against  the  defend- 
ant for  the  recovery  of  money  or 
costs.  Cloyd  V.  Trotter,  118  111.  391; 
Biekerdike  v.  Allen,  157  111.  95;  Gary 
V.  N.  W.  Mutual  Aid  Ass'n,  87  la.  25; 
Sturgis  V.  Fay,  16  Ind.  429;  Davis  v. 
Richmond,  35  Vt.  419;  Raub  v.  Otter- 
back,  89  Va,  645;  Maddox  v.  Craig,  80 
Tex.  600;  Dull  v.  Blackman.  169  U.  S. 
243;  Wilson  v.  Railway  Co.,  108  Mo. 
588;  Ralston's  Appeal,  93  Pa  St.  133; 
Williams'  Adm'rs  v.  Welton's  Adm'r, 
28  Ohio  St.  451;Masterson  v.  Little,  75 
Te.\.  682;  Shepard  v.  Wright,  113  N. 
Y.  582;  Cooper  v.  Reynolds,  10  Wall. 
(U.  S.)368;  Gibbs  v.  Insurance  Co.,  63 
N.  Y.  114,  124:  Toms  v.  Railway  Co., 
40  S.  C.  520;  Daniels  v.  Railway  Co.,. 
58  Mo.  App.  202. 
2 157  III  95. 


§  ST.]  PKOOESS    AND    DEFENDANT'S    APPEARANCE.  lOT 

property  in  the  state.  In  such  proceedings  in  rem^  where  the 
object  is  to  reach  and  dispose  of  property  within  the  state,  or 
of  some  interest  therein,  service  by  publication,  or  in  some  mode 
other  than  upon  the  person,  may  be  sufficient.  The  theory  of 
the  law  is,  that  when  a  man's  property  is  brought  under  the 
control  of  the  court  by  seizure,  such  seizure  informs  and  notifies 
him  of  the  proceedings  taken  for  its  sale  or  condemnation.  In 
such  cases,  constructive  notice  is  permitted  and  becomes  effect- 
ual solely  by  reason  of  the  attachment  or  seizure  of  the  prop- 
erty. The  jurisdiction  of  the  court  to  determine  the  obliga- 
tions of  the  defendant  constructively  notified  is  incidental  to 
its  jurisdiction  over  the  property.  The  judgment  has  no  effect 
beyond  the  property  reached  or  affected  in  that  suit.  '  Juris- 
diction is  acquired  in  one  of  two  modes:  first,  as  against  the 
person  of  the  defendant  by  the  service  of  process;  or,  secondly, 
by  a  procedure  against  the  property  of  the  defendant  within 
the  jurisdiction  of  the  court.' " 

§87.  Process  in  divorce  suits. —  Jurisdiction  may  be  ob- 
tained in  suits  for  divorce  by  order  for  publication,  and  it  is 
generally  held  that  a  decree  of  the  court  may  be  based  upon 
such  service.  It  is  upon  the  theory  that  these  proceedings  are 
not  proceedings  in  'personam.^  but  that  they  are  <7?^«67'-proceed- 
ings  in  rem;  that  the  marriage  status  is  the  res^  and  that  there- 
fore jurisdiction  may  be  obtained  by  service  upon  the  defendant 
outside  the  jurisdiction  of  the  court  by  publication.  It  seems 
to  be  a  general  and  undisputed  principle  of  law  that  a  state 
cannot  be  deprived  of  the  right  to  govern  and  control  the 
status  of  its  citizens.  Mr.  Black,  in  his  work  on  Judgments,^ 
says:  "So  that  now  the  rule  may  be  regarded  as  settled,  by 
the  great  preponderance  of  authority,  that  a  decree  of  divorce 
pronounced  by  a  competent  court,  in  favor  of  a  hona  fide 
domiciled  citizen  of  the  state  and  against  a  non-resident,  where 
service  of  process  was  made  by  a  reasonable  constructive 
notice,  and  in  the  absence  of  any  fraud  or  collusion,  is  valid 
and  binding  both  in  that  state  and  in  all  other  states.  As 
summing  up  the  principles  advocated  and  leading  to  this  ulti- 
mate conclusion,  we  quote  the  following  from  the  opinion  of 

12  Black  on  Judgments,  sees.  933,  933;  McGill  v.  Deming,  44  Ohio  St.  645r 
Thorns  V.  King,  9.5  Tenn.  60. 


108  PE0CES8    AND    DEFENDANT'S    APPEARANCE.  [§  87. 

Mr.  Justice  Field  in  an  important  decision  of  the  federal  su- 
preme court.  After  speaking  of  the  inefficacy  of  substituted 
service  of  process  as  a  foundation  for  a  judgment  personally 
binding  on  the  defendant,  the  learned  judge  observed:  "To 
prevent  any  misapplication  of  the  views  expressed  in  this 
opinion  it  is  proper  to  observe  that  we  do  not  mean  to  assert 
by  anything  we  have  said  that  a  state  may  not  authorize  pro- 
ceedings to  determine  the  status  of  one  of  its  citizens  towards  a 
non-resident,  which  would  be  binding  within  the  state,  though 
made  without  service  of  process  or  personal  notice  to  the  non- 
resident. The  jurisdiction  which  every  state  possesses  to  de- 
termine the  civil  status  and  capacities  of  all  its  inhabitants 
involves  authority  to  prescribe  the  conditions  on  which  pro- 
ceedings afifecting  them  may  be  commenced  and  carried  on 
within  its  territory.  The  state,  for  example,  has  absolute 
right  to  prescribe  the  conditions  upon  which  the  marriage  re- 
lation between  its  own  citizens  shall  be  created,  and  the  causes 
for  which  it  may  be  dissolved.  One  of  the  parties  guilty  of 
acts  for  which,  by  the  law  of  the  state,  a  dissolution  may  be 
granted  may  have  removed  to  a  state  where  no  dissolution  is 
permitted.  The  complaining  party  would  therefore  fail  if  a 
divorce  were  sought  in  the  state  of  the  defendant,  and  if  ap- 
plication could  not  be  made  to  the  tribunals  of  the  complain- 
ant's domicile  in  such  case,  and  proceedings  be  there  instituted 
without  personal  service  of  process  or  personal  notice  to  the 
offending  party,  the  injured  citizen  would  be  without  redress." 
In  Woodworth  v.  Spring'^  it  is  said:  "Every  sovereignty 
exercises  the  right  of  determining  the  status  or  condition  of 
persons  found  within  its  jurisdiction.  The  laws  of  a  foreign 
state  cannot  be  permitted  to  intervene  to  affect  the  personal 
rights  or  privileges  even  of  their  own  citizens,  while  they  are 
residing  on  the  territory  and  within  the  jurisdiction  of  an 
independent  government.  .  .  .  The  question  whether  a 
person  within  the  jurisdiction  of  a  state  can  be  removed 
therefrom  depends,  not  on  the  laws  of  the  place  whence  he 
came  or  in  which  he  may  have  had  his  legal  domicile,  but  on 
his  rights  and  obligations  as  they  are  fixed  and  determined 
by  the  laws  of  the  state  or  country  in  which  he  is  found." 

14  Allen  (Mass.),  321;  Kline  v.  Kline,  57  Iowa,  356;  Roth  v.  Roth,  104  111. 
35;  Hansford  v.  Hansford,  34  Mo.  App.  262. 


§§  88-90.]      PKOCESS  AND  defendant's  appearance.  109 

§  88.  Defective  service  waived  by  appearance  or  admis- 
sion of  service. —  Tbe  person  or  persons  who  are  made  de- 
fendants in  the  bill  of  complaint  duly  filed  in  the  register's 
office  may  waive  a  defective  service,  or  may  even  waive  a 
failure  of  service  by  appearing  in  the  case,  or  by  demurring, 
pleading  to  or  answering  the  bill  of  complaint.  And  it  has 
been  held  that  where  such  defendants  appear  and  file  a  cross- 
bill, service  of  process  will  be  waived.*  This  rule  rests  upon 
the  doctrine  that  the  defendant,  by  appearing  or  defending 
the  suit,  recognizes  the  jurisdiction  of  the  court  and  subjects 
himself  to  it,  and  having  thus  recognized  the  court's  jurisdic- 
tion, is  estopped  from  denying  it  or  pleading  that  he  did  not 
have  the  personal  notice  required  to  bring  him  into  the  case. 

In  an  early  case,  Dunn  v.  Dumiy^  Chancellor  "Walworth 
said:  "In  all  cases  where  the  court  has  jurisdiction  over  the 
subject-matter  of  the  suit,  if  the  defendant,  who  is  beyond  the 
limits  of  the  state,  thinks  proper  to  waive  that  objection  by  a 
voluntary  appearance,  or  by  consenting  to  accept  as  regular 
the  service  of  process  upon  him  at  the  place  where  he  resides 
or  is  found,  he  cannot  afterwards  object  to  the  regularity  of 
the  proceedings  against  him,  founded  on  such  service." 

§  89.  Appearance. —  The  defendant  deeming  the  proceed- 
ing regular,  having  been  served  personally  or  constructively 
with  the  subpoena  or  summons,  may  appear  in  the  cause.  He 
need  not  wait  for  service  of  the  writ,  but  at  any  time  after  the 
bill  is  filed  in  the  cause  may  enter  his  appearance;  for  by  fil- 
ing the  bill  the  court  is  given  jurisdiction  of  the  subject-mat- 
ter of  the  suit,  and  the  defendant,  by  entering  appearance  vol- 
untarily, gives  the  court  jurisdiction  of  the  person.' 

§  90.  How  appearance  is  entered. —  The  defendant  enters 
his  appearance  in  the  office  of  the  register  in  chancery  or  the 
clerk  of  the  court,  as  the  rules  of  practice  provide,  generally 
by  a  solicitor,  but  he   may  appear  in  his  own  proper  person. 

1  Byers  v.  Sugg  (Tenn.  Ch.  App.,  fendant  was  brought  into  court  were 
1900),  57  S.  W.  397;  Dennison  v.  waived  by  pleading  to  the  merits. 
Crofts.  74  Conn.  38,  49  Atl.  859;  Stone  24  Paige  (N.  Y.),  430;  Cheney  v. 
V.  Welling,  14  Mich.  514;  Long  v.  Harding.  21  Neb.  65;  Allured  v.  Vol- 
Long.  59  Mich.  296.  In  Hannah,  etc.  ler,  107  Mich.  476;  Jones  v.  Merrill, 
Co.   V.  Mosser,  105  Mich.    18,  it  was  113  Mich.  433. 

held  that  all  objections  to  the  pro-  ^  1    DanL  Ch.  PL  &    Pr.  512,  513, 

cess  or  proceedings  by  which  a  de-  536. 


110  PROCfESS    AND    DEFENDANT'S    APPEARANCE.  [§  91. 

The  appearance  of  the  defendant  is  consummated  by  enter- 
ing appearance  and  at  the  same  time  an  order  (which  is 
entered  of  course)  for  copy  of  the  bill  of  complaint  and  serv- 
ing the  solicitor  for  the  complainant,  if  he  has  one;  if  not,  the 
complainant  in  person,  with  a  notice  of  such  appearance  and 
order.  This  order  is  usually  entered  by  the  clerk,  or  register, 
upon  a  request  or  precipe  of  counsel.  No  formal  words  are 
necessary,  but  the  following  is  a  form  often  used: 

{Title  of  court  and  cause.) 

Sir: — Enter  my  appearance  for  the  defendant  in  the  above 
cause  with  the  usual  order  that  complainant  deliver  a  copy  of 
the  bill  to  me  in  fifteen  days  after  service  on  him  of  a  copy  of 
said  order. 

S.  T.  U.,  Solicitor  for  Defendant. 
To  P.  D.  Q.,  Esq.,  Eegister." 

Upon  receiving  this  request  or  precipe  the  register  will  en- 
ter the  defendant's  appearance  by  his  solicitor  as  ordered. 
The  defendant's  solicitor  will  then  give  notice  of  his  appear- 
ance and  of  the  order  so  entered  to  the  solicitor  for  the  com- 
plainant as  follows: 

{Title  of  court  and  cause.) 

Sir: — Please  take  notice  that  my  appearance  for  the  de- 
fendant in  this  cause  has  been  entered  in  the  office  of  the  reg- 
ister of  this  court  with  an  order  that  you  deliver  to  me  a  copy 
of  the  bill  of  complaint  within  fifteen  days  after  service  on 
you  of  a  notice  of  said  order,  or  said  bill  will  be  dismissed,  etc. 

Yours,  etc., 
S.  T.  U.,  Solicitor  for  Defendant. 
To  X.  U.  L.,  Solicitor  for  Complainant. 

These  forms  are  often  prescribed  by  rule  of  practice  in  the 
different  courts.  The  time  for  service  of  a  notice  of  appear- 
ance, or  compliance  therewith  by  serving  a  copy  of  the  bill,  is 
fixed  by  rule,  varying  in  different  jurisdictions.  Should  the 
complainant  fail  to  serve  the  defendant  with  a  copy  of  the  bill 
within  the  time  required  by  rule  he  may  be  defaulted  for  the 
failure,  by  the  defendant,  and  unless  the  court  sets  aside  the  de- 
fault, the  defendant  may  have  the  bill  dismissed  with  costs. 

§  91.  Actions  paramount  to  voluntary  appearance. —  The 
defendant  need  not  thus  formallv  enter  his  appearance,  but 
usually  does  so  because  by  it  he  obtains  service  of  a  copy  of  the 
bill.     He  may,  however,  appear  by  filing  his  answer  to  the  bill 


§§  02,  93.]       PKOOESS    AND    DEFENDANT'S    APPEARANCE.  Ill 

or  pleading  to  the  same;  and  it  has  been  held  that  where  the 
defendant  filed  a  motion  to  dismiss  the  case  for  want  of  juris- 
diction or  for  want  of  equity,  and  to  dismiss  a  receiver  and  dis- 
solve an  injunction,  he  had  appeared  generally  in  the  case.^ 
Such  a  motion  goes  to  the  whole  case  and  attacks  the  very  ob- 
ject of  the  cause;  to  entertain  it  would  be  to  entertain  the 
making  of  a  complete  defense.  A  special  appearance,  however, 
as,  for  example,  to  dissolve  an  injunction  or  set  aside  an  order 
appointing  a  receiver,  would  not  be  held  to  be  a  general  ap- 
pearance in  the  cause. 

§  92.  The  effect  of  appearance.—  The  defendant  having  ap- 
peared in  the  cause  is  entitled  to  notice  of  every  step  taken  by 
the  complainant  during  the  pendency  of  the  suit,  whether  he 
defends  or  rests  after  his  appearance.  An  appearance  cures 
all  defects  in  the  process  or  its  service,  but  will  not  cure  a  de- 
fect that  affects  the  jurisdiction  of  the  court,  for  that  is  a  ques- 
tion which  may  be  raised  at  any  time.^ 

§  93.  Compulsory  appearance.—  In  some  jurisdictions  the 
early  practice  of  compelling  the  defendant  to  appear  may  still 
be  resorted  to  in  cases  of  bills  of  discovery,  but  the  reason 
of  the  rule  having  ceased,  because  of  the  passage  of  statutes 
that  allow  the  parties  to  be  witnesses  in  the  cause  which  gives 
to  either  party  the  privilege  of  calling  the  other  as  a  witness 
and  fully  and  at  length  examine  him,  would  seem  to  leave  but 
little,  if  any,  necessity  for  such  a  proceeding;  indeed  in  most 
jurisdictions  statutes  have  been  enacted  giving  to  either  party 
the  right  to  full  examination  of  books,  property,  or  papers 
pertaining  to  the  controversy  which  are  entirely  under  the 
control  of  the  opposite  party.  And  so  it  would  seem  that  the 
technical  bill  of  discovery  brought  in  aid  of  a  suit  at  law  can 
have  but  little  if  any  place  in  our  present  statutory  practice.^ 
In  proceedings,  however,  by  judgment  creditors'  bills  and  cer- 
tain special  proceedings  in  corporation  cases,  statutes  have 
been  passed  making  this  proceeding  by  bill  for  discovery  ap- 

1  Edgell  V.  Felder,  28  C.  C.  App.  6  How.  608;  1  Barb.  Ch.  Pr.  78  and 
(U.  S.)  383,   84   Fed.  69;   ante,  §  77    notes. 

and  notes;  Hannah  &  Co.  v.  Mosser,  "•*  Riopelle  v.  Doellner,  26  Mich.  102', 

105  Mich.  18.  Shelden  v.  Wall  bridge,  44  Mich.  251; 

2  Farrar  v.  United  States,  3  Pet.  McCreery  v.  Circuit  Judge,  93  MMjh 
(U.  S.)  459;  United  States  v.  Yates,  463. 


112        PROCESS  AND  DEFENDANT'S  APFEAEANOE.   [§§  94,  95. 

plicable  to  a  certain  extent.     This  will  be  discussed  in  a  later 
Bection.' 

§  94.  How  appearance  entered  by  persons  under  disabil- 
ity.—  Infants  must  appear  by  their  guardians  ad  litem  ap- 
pointed by  the  court.  If  it  appears  that  no  guardian  has  been 
appointed,  the  court  will  appoint  one  upon  the  fact  appearing 
that  the  defendant  is  an  infant.  If  the  infant  is  fourteen  years 
old  or  more  he  will  have  the  privilege  of  selecting  a  guardian 
for  himself  unless  it  is  apparent  to  the  court  that  the  person 
selected  is  not  a  fit  or  proper  person  to  take  charge  of  hid  de- 
fense. The  guardian  being  selected  and  appointed  may  employ 
a  solicitor,  who  may  enter  the  appearance  of  the  infant  in  the 
cause  by  guardian.* 

Idiots,  lunatics,  etc. —  These  persons,  like  infants,  appear  by 
guardian,  or  by  their  committee,  when  such  committee  is  pro- 
vided. Whenever  it  shall  appear  to  the  court,  either  by  alle- 
gations in  the  bill  or  by  affidavit,  that  the  defendant  belonged 
to  this  class,  the  guardian  ad  litem  will  at  once  be  appointed 
If  tliere  is  a  general  guardian  who  is  qualified  to  appear,  he 
will  be  permitted  to  do  so,  and  may,  if  desirable,  employ  a  so- 
licitor.' 

§  95.  Husband  and  wife. —  If  the  bill  is  filed  against  the 
husband  and  wife,  the  husband  may  enter  the  appearance  of 
both  and  proceed  with  a  joint  defense;  but  where  a  wife  re- 
fuses to  join  with  her  husband,  or  lives  separate  and  apart 
from  him  and  is  not  under  his  control,  the  husband  would  no 
doubt  be  permitted  to  put  in  a  separate  answer.  And  when 
the  bill  is  filed  seeking  relief  against  the  wife's  separate  and 
sole  estate,  she  may  enter  her  appearance  in  person,  or  by  so- 
licitor if  she  desires  to  do  so,  without  joining  the  husband; 
and  in  cases  brought  against  her  by  her  husband,  as  for  di- 
vorce, she  may  conduct  her  defense  without  any  interference 
on  his  part.* 

1  Posf,  §97.  guardians  ad  litem  have  been  ap- 

2 1  DanL  Ch.  PI.  &  Pr.  538.     "  Ap-  pointed."      Bradwell    v.    Weeks,    1 

pearances  are  entered  on  behalf  of  Johns.  Ch.  (N.  Y.)325;  Irons  v.  Crist, 

infants,    and    persons    of    unsound  3  A.  K  Marsh.  (Ky.)  143. 

mind,  in  their  own  names,  as  in  case  ^1  Danl.  Ch.  PL  &  Pr.  175;  1  Barb, 

of  ordinary   defendants;     but  they  Ch.  Pr.  154. 

cannot  put  in  their  answers,  or  talie  *  1  Danl.  Ch.  PI.  &  Pr.  5^7.  "Where 

any  other  step   in   the  cause,  until  a  husband  and  wife  are  defendants. 


§  96.]  PROCESS    AND    DEFENDANT'S    APPEARANCE.  113 

§  %.  Appearance  Iby  corporation. —  A  corporation  may 
appear  by  solicitor  in  the  same  manner  as  a  natural  person. 
Corporate  companies  and  public  corporations  are  legal  entities 
recognized  as  being  as  competent  to  act  as  civil  persons.  The 
appearance  of  a  corporation  is  entered  in  its  own  proper  cor- 
porate name.  This  is  necessarily  done  by  an  agent  or  solicitor 
who  is  authorized  to  act  for  the  corporation.' 

the  husband  should,  under  ordinary  cases,  to  treat  her  as  9,  feme  sole  in 
circumstances,  appear  for  both;  and  this  respect."  Leavitt  v.  Crnger,  1 
he  will  be  liable  to  process  of  con-  Paige,  421.  Held,  "where  a  bill  is  filed 
tempt  for  the  non-appearance  of  his  against  husband  and  wife,  the  hus- 
wife, as  well  as  his  own.  The  wife  band  is  bound  to  enter  a  joint  ap- 
may,  however,  in  all  cases,  without  pearance,  and  put  in  a  joint  answer 
any  special  order,  enter  an  appear-  for  both."  1  Danl.  Ch.  PI.  &  Pr.  175. 
ance  for  herself,  and,  as  we  have  ^1  Danl.  Ch.  PL  &  Pr.  146;  1  Barb, 
seen,  the  plaintiff  is  entitled,  in  some  Ch.  Pr.  87. 


CHAPTER  YII. 


PROCEEDINGS  TO  A  DECREE  PRO  CONFESSO. 


§  97.  The   defendant  failing  to  ap- 
pear. 

98.  For  failure  to  appear  and  de- 

fend—  Bill    taken  as    con- 
fessed. 

99.  Default  for  failure  to  demur, 

plead  or  answer. 
100.  Appearance  of  defendant  en- 
titles him  to  notice  of  subse- 
quent proceedings. 


§  101.  Factsadmitted  by  defendant's 
default 

102.  If  defendant  an  infant  or  per- 

son under  disability. 

103.  Bill  amended  after  default. 

104.  Opening  or  setting  aside  the 

default 

105.  When  decree  has  been  taken 

upon  order  pro  confesso. 

106.  The  procedure  lor  settingaside 

the  order  pro  confesso. 


§97.  The  defendant  failing  to  appear. —  Formerly  the 
court  of  chancery  had  no  power  to  proceed  to  a  decree  after 
service  of  the  writ,  personally  or  constructively,  without  the 
appearance  of  the  defendant  in  the  cause,  and  it  was  upon  this 
account  that  the  court  adopted  such  severe  measures  to  compel 
the  defendant  to  obey  the  command  in  the  writ  of  subpoena, 
for,  if  the  defendant  could  not  be  compelled  to  appear,  the  com- 
plainant was  without  remedy.^  The  only  course  was,  therefore, 
to  arrest  the  defendant  for  contempt  for  refusing  to  obey  the 
mandateof  the  court  to  appear  and  answer  the  complainant's  bill, 
and  this  contempt  could  only  be  purged  by  obeying  the  writ  of 
subpoena  and  subjecting  himself  to  the  jurisdiction  of  the  court. 
And  so  when  the  defendant  was  taken  into  custody  for  con- 
tempt, he  was  held  until  the  contempt  was  cleared  by  an  ap- 
pearance; but  if  the  defendant  persistently  refused,  the  process 
of  outlawry  was  issued  to  give  the  relief  demanded  by  the 
complainant's  bill,  and  the  forfeited  goods  of  the  outlaw,  al- 
though strictly  for  the  benefit  of  the  king,  were  applied  to  the 
payment  of  the  complainant's  demand  upon  a  petition  to  the 
exchequer.^ 

An  exhaustive  history  of  this  early  practice  is  given    by 


1  Ante,  §  73  and  note  1. 


2  3  Blk.  Comm.  248. 


97.] 


PROCEEDINGS    TO    A    DECREE    PRO    OONFESSO. 


115 


Hoffman,  master  in  chancery,  in  his  report  to  the  court  in 

Williams  v.  Corwin} 


1  Hopkins'  Ch.  Prac.  (N.  Y.)  471. 
"This  cause  was  submitted  to  the 
court  upon  a  special  report  of  Mas- 
ter Hoffman,  tlie  object  of  which 
was  to  obtain  instructions  from  the 
court. 

"  Mr.  Hoffman  had  also  reduced  to 
writing  the  result  of  his  investiga- 
tion into  the  question  submitted, 
which  result  was  approved  in  geceral 
terms  by  the  court;  and  the  sub- 
stance of  the  master's  investigation 
was  as  follows: 

'•  On  the  effect  of  a  bill  taken  pro 
confesso:  By  the  ancient  course  of  the 
court,  no  bill  could  be  taken^ro  cori- 
fesso  unless  an  appearance  had  been 
entered.  Nodes  v.  Battle,  2  Ch.  Rep. 
283;  Nelson's  Rep.  1 ;  Cursus  Can.  116; 
1  Prax.  Aim.  7;  2  Freeman's  Rep.  127. 
"  If  the  defendant  would  not  ap- 
pear this  court  could  not  decree  the 
bill  pro  confesso,  but  ordered  a  se- 
questration against  his  real  and  per- 
sonal estate  until  he  cleared  his  con- 
tempt. 

"  In  order,  therefore,  to  obtain  an 
appearance  a  long  chain  of  process 
was  employed,  ending  in  a  seques- 
tration of  the  defendant's  property. 
By  this  process  his  lands  were  en- 
tered upon  and  his  personal  property 
taken  possession  of.  See  also  1  Ves. 
86. 

"Indeed,  the  rule  seems  to  have 
been  then,  as  it  clearly  is  now,  that 
properly  the  sequestration  on  mesne 
process  was  not  to  be  executed  by 
a  sale  of  the  goods,  but  only  by  keep- 
ing the  party  out  of  possession;  being 
only  to  found  the  process  of  taking 
the  bill  2^ro  confesso  upon  the  party's 
contempt.  After  the  bill  was  taken 
pro  confesso  and  a  duty  decreed,  the 
sequestration  was  executed,  and  the 
party  upon  application  to  the  court 
obtained  satisfaction  of  his  demand. 


Rowley  V.  Ridley,  2  Dick.  632,  125,  3 
Br.  C.  C.  71.  and  2  Ves.  &  Bea.  184; 
Ambler,  421;  Bunbury,  272;  1  Vea. 
86,  and  cases  in  4  Ves.  735. 

"  But  as  the  bill  could  not  be  taken 
pro  confesso  unless  an  appearance 
had  been  obtained,  the  complainant 
was  without  remedy  where  he  could 
not  take  the  defendant  upon  process; 
and  where  he  did  take  him,  and  the 
defendant  persisted  in  refusing  to 
appear,  he  could  only  have  him  com- 
mitted and  detained  until  he  cleared 
his  contempt  by  entering  his  appear- 
ance. 

"  The  common-law  process  of  out- 
lawry gave  ultimately  to  the  party 
the  means  of  obtaining  his  demand. 
In  that,  as  in  the  process  in  equity, 
the  primary  object  of  the  proceeding 
was  to  compel  an  appearance,  so  that 
any  plausible  ground  was  sufficient 
to  reverse  the  outlawry;  but  it  be- 
came at  last  a  matter  of  course,  that 
the  forfeited  goods  of  the  outlaw, 
which  were  strictly  for  the  benefit 
of  the  king  alone,  should  be  applied 
to  the  payment  of  the  complainant's 
demand,  by  petition  to  the  exchequer. 
3  Black.  Com.  284;  Tidd's  Prac,  tit. 
Outlawry. 

"  By  the  course  of  the  court,  there- 
fore, no  decree  could  be  obtained 
against  a  defendant  who  could  not 
be  served  with  process.  And  this 
remained  without  remedy  until  the 
5th  George  2,  enacted  in  1732. 

"Under  the  same  principle,  which 
made  it  necessary  that  a  party  should 
appear  before  a  bill  could  be  taken 
pro  confesso,  the  court,  where  he  bad 
appeared,  took  uncommon  measures 
to  have  him  perfectly  apprised  of 
the  proceedings  against  him.  Thus, 
in  the  case  of  Black  well  v,  Geering, 
Clerk's  Tutor  in  Chancery,  25,  the 
defendant  demurred,  and  was  prose- 


116 


PEOOEEDINGB    TO    A    DECREE    PRO    C0NFES80. 


[§98. 


§98.  For  failure  to  appear  and  defend  —  Bill  taken  as 
confessed. —  The  very  inconvenient  and  unsatisfactory  prac- 
tice of  compelling  an  appearance  by  the  defendant  has  long 
since  ceased  to  be  the  practice  in  the  chancery  court.     By  stat- 


cuted  to  sequestration  for  want  of  an 
answer, 

'•This  day,  the  plaintiff's  bill  being 
read,  was  decree  pro  confesso  aj^^ainst 
the  defendant,  notwithstanding  it 
was  strongly  insisted,  as  in  Denny's 
case  against  Tihner,  that  no  such  de- 
cree ouglit  to  be,  unless  the  defend- 
ant be  taken  and  brought  in  person 
into  court  to  hear  the  bill  read.  Even 
at  present  when  the  defendant  is 
taken  and  committed  to  prison  upon 
attachment  or  other  process,  and 
brought  up  on  habeas  corpus,  he  is 
brought  up  three  times  successively 
and  ciiarged  of)enly  with  the  bill, and 
has  the  record  of  it  read  to  him  in 
open  court  before  it  is  decree  pro 
confesso,  the  court  then  entering  an 
appearance  for  him.  Newland,  tit. 
Bills  Pro  Confesso,  93;  Fowler.  193; 
Hind.  Sol.  Assist;  1  Eq.  Ca.  Ab.  83. 

"In  the  case  of  Johnson  v.  Desmi- 
neere  counsel  state  'that,  though  the 
course  of  tiie  court  is  now  to  take  a 
bill  pro  confesso  after  the  party  has 
once  appeared,  and  stands  out  in  con- 
tempt, till  the  plaintiff  has  got  to  the 
end  of  the  line,  yet  formerly  this 
court  did  not  do  it.  even  in  that  case, 
without  putting  the  plaintiff  to  prove 
the  substance  of  his  bill,'  1  Vern. 
223;  Mosely,  dSS.     This  was  in  1683. 

'•  But  smce  the  defendant,  by  re- 
fusing to  answer,  deprived  the  plaint- 
iff of  putting  matters  in  issue,  the 
court  gave  him  liberty  to  prove  them. 
The  attorney-general  for  the  plaint- 
iff also  said  that  the  reasons  on  which 
these  decrees  were  founded  were 
that,  by  defendant's  default,  no  issue 
can  be  joined  for  the  plaintiff  to 
prove  his  case.     Curs.  Can.  209. 

"The  lord  chancellor  said,  by  the 
<}ld  practice  of  the  court  the  plaint- 


iff was  undoubtedly  put  to  prove  his 
bill  by  witnesses  viva  voce.  And  so 
was  every  plaintiff  at  law,  his  decla- 
ration as  appears  by  those  words,  et 
inde  producit  sectam,  where  secta 
signifies  tiie  witnesses.  So  the  solic- 
itor-general stated  that  the  practice 
of  proving  the  bill  was  laid  aside  be- 
cause the  plaintiff  often  came  into 
court,  because  he  could  not  [irovehis 
case  but  by  the  discovery  of  the  de- 
fendant So  17  Ed.  3,  48:  Fleta,  lib,  2, 
c.  62,  sec.  2,  c  63,  sees.  9-11;  Lucas* 
Cases,  253. 

"  The  lord  chancellor  said,  a  decree 
pro  confesso  is  like  a  judgment  by 
nil  dieit  at  common  law. 

"  In  the  case  of  Hawkins  v.  Crook, 
2  Pere  Williams,  556.  it  is  stated  that 
the  practice  of  taking  a  bill  pro  C07i- 
fesso  is  not  of  long  standing;  the 
ancient  way  being  to  put  the  plaint- 
iff to  make  proof  of  the  substance  of 
his  bill,  though  the  defenilant  had 
stood  out  to  the  last  process,  a  seques- 
tration, 

"The  master  of  the  rolls  decreed, 
the  bill  being  in  part  read,  that  the 
defendant  account  for  the  rents  and 
profits  received  by  him;  that  there 
should  be  a  perpetual  injunction  and 
a  reconveyance.  The  bill  was  to  set 
aside  a  will  for  fraud,  which  devised 
the  estate  to  the  defendant 

"  'A  bill  was  brought  against  the 
defendant  for  a  discovery,  as  the  ma- 
terial partof  the  case  depended  upon 
a  discovery.  The  defendant  would 
not  answer,  but  stood  out  the  whole 
process  of  contempt  to  a  sequestra- 
tion, and  the  bill  was  taken  pro  con- 
/es.so,  and  there  was  a  decree  against 
the  defendant  ad  computandum.  It 
was  moved  to  discharge  the  seques- 
tration on  payment  of  costs.     Lord 


§98.] 


PKOOEEDINGS  TO  A  DECREE  PRO  CONFESSO. 


iir 


utes  and  by  rules  of  court  the  complainant  is  permitted,  upon 
the  failure  of  the  defendant  to  appear  and  avail  himself  of  the 
privilege  of  defending  the  suit,  to  enter  his  default  and  pro- 
ceed to  a  decree. 


Hardwicke.  It  was  said  for  the  de- 
fendant that  this  ditf ers  from  the  case 
where  a  certain  duty  is  decreed  upon 
a  bill  taken  pro  confesso,  because 
there  the  estate  may  be  sold  and  the 
money  applied  in  discharge,  pursu- 
ant to  the  decree;  but  here,  as  the 
decree  is  ad  computandum,  it  may 
be  presumed  that  the  defendant  may 
have  a  balance  in  his  favor.'  May- 
nard  v.  Pomfret,  3  Atk.  468.  A.  D. 
1746.  He  kept  the  sequestration  on 
foot  as  a  security  for  the  defendant's 
appearing  before  the  master  to  take 
the  account.  Vaughn  v.  Williams, 
Dickens,  354.     A.  D.  1763. 

"  'A  bill  was  preferred  against  a 
Quaker  for  titlies,  who  refused  to 
answer  upon  oath;  the  defendant 
was  brought  to  the  bar,  and  having 
been  brought  three  times  before, 
the  bill  was  taken  pro  confesso,  and 
referred  to  a  master  to  examine 
what  was  due,  and  to  be  armed  with 
a  commission  for  that  purpose.' 
Anon.,  2  Freeman's  Rep.  in  Ch.  27; 
Dickens,  588.     This  was  in  1677. 

"When  a  bill  is  to  be  taken  pro 
confesso,  the  practice  in  England  is 
to  procure  an  order  for  the  clerk 
in  court  to  attend  with  the  record 
of  the  bill,  that  it  may  be  taken  pro 
confesso,  and  the  cause  is  set  down 
for  hearing,  except  where  there  is 
but  one  defendant  and  he  in  cus- 
tody. And  the  court  itself  pro- 
nounces the  decree.  Newland,  95, 
cap.  2,  sec.  12;  3  Ves.  372;  Geary  v. 
Sheridan,  8  Ves.  192;  Dickens,  667. 

"To  obviate  the  injustice,  which 
must  frequently  arise  to  the  plaint- 
iff, from  the  defendant's  obstinately 
refusing  to  come  to  issue  with  the 
plaintiff  respecting  the  matters  in 
dispute,  the  Roman  law  entertained 


a  fictitious  contestatio  litis,  which 
they  called  a  quasi  contestatio.  Bar- 
ton's Suit  in  Equity,  98;  Gibson, 
Cod.  44,  c.  24. 

"  The  same  rule  prevailed  in  the 
canon  law.  Bows  v.  Jurat,  Lucas' 
Cases,  440,  cited  as  10  Mod. 

"  In  Fowler's  Exchequer  Practice 
is  the  form  of  an  order  to  charge 
the  defendant  with  the  bill  the  third 
time,  being  brought  up  upon  a 
habeas  corpus,  and  to  take  it  pro 
confesso.  It  runs,  'that  the  plaintiff's 
bill  be  and  the  same  is  hereby  taken 
against  the  said  defendant  as  con- 
fessed,' and  then  directs  a  reference 
to  the  deputy  remembrancer,  to  take 
an  account  according  to  the  prayer 
of  the  bill;  authorizes  him  to  exam- 
ine the  defendant  upon  interroga- 
tories, and  arms  him  with  a  commis- 
sion to  examine  witnesses.  1  Fowler, 
Ex.  Pr.  222.  Also  Benson  v.  Vernon, 
3  Br.  P.  C.  626. 

"As  a  member  of  parliament  could 
not  be  arrested  upon  process  and 
brought  up  to  be  charged  with  the 
bill,  and  it  could  not  often  be  shown 
that  he  absconded  to  avoid  process, 
a  decree  pro  confesso  under  the  5th 
George  2d  could  not  be  obtained,  if 
he  refused  to  appear.  By  statute 
45  George  3,  cap.  124,  a  provision  was 
made  to  meet  this  case.  Newland, 
tit.  Bills  Pro  Confesso;  16  Ves.  437; 
17  Ves.  368;  Rules  35,  36,  of  the 
Courts  of  Equity  of  South  Carolina, 
1  Dess.  Eq.  Rep.  62;  Laws  of  New 
Jersey,  p.  496  (15th  ed.,  1821). 

"  As  to  the  rule  at  law,  it  is  ad- 
mitted that  where  judgment  is  ob 
tained  by  default,  if  the  action  be  in 
debt,  covenant,  or  the  like,  to  re- 
cover any  fixed  specified  sum,  and 
there  is  no  occasion  for  the  inter 


118 


PROCEEDINGS    TO    A    DECREE    VRO    0ONFE8SO. 


[g  98. 


In  Thomson  v.'Wooster'^  the  supreme  court  of  the  United 
States  have,  in  an  opinion  by  Mr.  Justice  Bradley,  fully  dis- 
cussed the  early  and  the  present  practice,  and  noted  the  sev- 
eral changes  made  by  rule.     Upon  the  default  of  the  defend- 


ference  of  a  jury  to  ascertain  the 
amount  of  the  plaintiff's  demand,  it 
is  then  a  final  judgment,  and  plaint- 
iff may  proceed  immediately  to  get 
his  costs  taxed,  and  sue  out  execu- 
tion. Cr.  Eliz.  COJ;  Moor,  522;  1 
Chitty,  107;  4  T.  R.  275.  493;  1  Tid.  1, 
523;  2  Saunders,  lOo. 

"  It  was  mu</h  controverted, 
whether,  ui)on  executing  a  writ  of 
inquiry  in  England  upon  a  promis- 
sory note,  its  execution  must  be 
proved.  And  tlie  statute  for  the 
amendment  of  the  law  appears  to 
have  been  framed  upon  the  supposi- 
tion that  it  was  necessary.  Billers  v. 
Bowles,  Barnes,  238;  Douglas,  315;  2 
Strange,  1149;  3  Durnford  &  East, 
301. 

"And  the  point  is  so  settled  in  the 
supreme  court  of  the  United  States. 
The  chief  justice  said,  'the  default 
dispenses  with  tlie  proof  of  the  note, 
but  not  with  its  production.  The 
note  must  be  produced  or  accounted 
for.'  Sheehy  v.  Maudeville,  7  Cranch, 
208.  It  appears  manifest  from  the 
cases  cited  that,  to  a  certain  extent, 
the  court  will  decree  upon  the  naked 
allegations  of  the  complainant's  bill, 
and  give  the  relief  proper  to  the 
case.     2  P.  Wms.  556. 

"What  principle  can  be  extracted 
from  these  cases  but  this:  that 
wherever  the  allegations  of  a  bill 
are  of  a  nature  so  distinct  and  posi- 
tive that,  taking  them  to  be  true, 
the  court  can  make  a  decree  upon 
them,  it  will,  upon  the  order  ■pro  con- 
fesso,  decree  without  proof?  Where 
they  are  in  their  nature  so  defective 
or  vague  that  a  precise  decree  can- 
not be  made  upon  them,  proof  must 
be  adduced,  from  the  necessity  of 
the  case.     And  it  must  be  in  order 


to  see  what  decree  the  allegations 
will  bear,  that  the  court  requires 
the  bill  to  be  produced  to  it,  and 
pronounces  the  decree  itself." 

M 1 1  U.  S.  1 04,  1 10.  "By  the  early 
practice  of  the  civil  law  failure  to 
appear  at  the  day  to  which  the  cause 
was  adjourned  was  deemed  a  con- 
fession of  the  action;  but  in  later 
times  this  rule  was  changed  so  that 
the  plaintiff,  notwithstanding  the 
contumacy  of  the  defendant,  oiiiy 
obtained  judgment  in  accordance 
with  the  truth  of  the  case  as  estab- 
lished by  an  ex  parte  examination. 
Keller,  Proced.  Rom.,  sec.  09.  The 
original  practice  of  the  English  court 
of  chancery  was  in  accordance  with 
the  later  Roman  law.  Hawkins  v. 
Crook,  2  P.  Wms.  556.  But  for  at 
least  two  centuries  past  bills  have 
been  taken  2^''(^  confesso  for  con- 
tumacy. Ibid.  Chief  Baron  Gilbert 
says:  'Where  a  man  appears  by  his 
clerk  in  court  and  after  lies  in 
prison,  and  is  brought  up  three  times 
to  court  by  liabeas  corpus  and  has 
the  bill  read  to  him  and  refuses  to 
answer,  such  public  refusal  in  court 
does  amount  to  the  confession  of  the 
whole  bilL  Secondly,  when  a  person 
appears  and  departs  without  answer- 
ing, and  the  whole  process  of  the 
court  has  been  awarded  against  him 
after  his  appearance  and  departure, 
to  the  sequestration,  there  also  the 
bill  is  taken  pro  confesso,  because  it 
is  presumed  to  be  true  when  he  has 
appeared  and  departs  in  despite  of 
the  court  and  withstands  all  its 
process  without  answering.'  Forum 
Romanum,  36.  Lord  Hardwicke  lik- 
ened a  decree  pro  confesso  to  a  judg- 
ment by  nil  dicit  at  common  law, 
and  to  judgment  for  plaintiff  on  de- 


§9S.] 


PEOCEEDINGS    TO    A    DECREE    PRO   CONFESSO. 


119 


ant  the  order  ^;^c>  confesso  may  be  entered  by  the  complainant 
for  failure  of  defendant  to  appear  in  the  cause,  or,  having  ap- 
peared, to  demur,  plead,  or  answer,  or  interpose  his  defense, 
and  the  default  of  the  complainant  may  be  entered  for  failure 


murrer  to  the  defendant's  plea. 
Davis  V.  Davis,  2  Atk.  21.  It  was 
said  in  Hawkins  v.  Crook,  qua  supra, 
and  quoted  in  2  Eq.  Ca.  Ab.  179,  that 
'The  method  in  equity  of  taking  a 
bill  i^ro  confesso  is  consonant  to  the 
rule  and  practice  of  the  courts  at 
law,  where,  if  the  defendant  makes 
default  by  nil  dicit,  judgment  is  im- 
mediately given  in  debt,  or  in  all 
cases  where  the  thing  demanded  is 
certain;  but  where  the  matter  sued 
for  consists  in  damages  a  judgment 
interlocutory  is  given;  after  which 
a  writ  of  inquiry  goes  to  ascertain 
the  damages,  and  then  the  judg- 
ment follows.'  The  strict  analogy  of 
this  proceeding  in  actions  of  law  to 
a  general  decree  pro  confesso  in 
equity  in  favor  of  the  complainant, 
with  a  reference  to  a  master  to  take 
a  necessary  account,  or  to  assess  un- 
liquidated damages,  is  obvious  and 
striking. 

"A  carefully  prepared  history  of 
the  practice  and  effect  of  taking  bills 
pro  confesso  is  given  in  Williams  v. 
Corwin,  Hopkins'  Ch.  471,  by  Hoff- 
man, master,  in  a  report  made  to 
Chancellor  Sanford,  of  New  York,  in 
which  the  conclusion  come  to  (and 
adopted  by  the  chancellor),  as  to  the 
effect  of  taking  a  bill  pro  confesso, 
was  that,  '  when  the  allegations  of  a 
bill  are  distinct  and  positive,  and  the 
bill  is  taken  as  confessed,  such  alle- 
gations are  taken  as  true  without 
proofs,'  and  a  decree  will  be  made 
accordingly;  but 'where  the  allega- 
tions of  a  bill  are  indefinite,  or  the 
demand  of  the  complainant  is  in  its 
nature  uncertain,  the  certainty  req- 
uisite to  a  proper  decree  must  be 
afforded  by  proofs.  The  bill,  when 
confessed  by  the  default  of  the  de- 


fendant, is  taken  to  be  true  in  all 
matters  alleged  with  sufificient  cer- 
tainty ;  but  in  respect  to  matters  not 
alleged  with  due  certainty,  or  sub- 
jects which  from  their  nature  and 
the  course  of  the  court  require  an 
examination  of  details,  the  obligation 
to  furnish  proofs  rests  on  the  com- 
plainant.' 

"We  may  properly  say,  therefore, 
that  to  take  a  bill  pro  confesso  is  to 
order  it  to  stand  as  if  its  statements 
were  confessed  to  be  true;  and  that 
a  decree  jpro  confesso  is  a  decree 
based  on  such  statements,  assumed 
to  be  true  ( 1  Smith's  Ch.  Pr,  153),  and 
such  a  decree  is  as  binding  and  con- 
clusive as  any  decree  rendered  in  the 
most  solemn  manner.  'It  cannot  be 
impeached  collaterally,  but  only  upon 
a  bill  of  review,  or  (a  bill)  to  set  it 
aside  for  fraud.'  1  Danl.  Ch.  Pr.  69G 
(1st  ed.);  Ogilvie  v.  Heme,  13  Ves. 
563. 

"Such  being  the  general  nature 
and  effect  of  an  order  taking  a  bill 
pro  confesso,  and  of  a  decree  j^^^o 
confesso  regularly  made  thereon,  we 
are  prepared  to  understand  the  full 
force  of  our  rules  of  practice  on  the 
subject.  Those  rules,  of  course,  are 
to  govern  so  far  as  they  apply;  but 
the  effect  and  meaning  of  the  terms 
which  they  employ  are  necessarily 
to  be  sought  in  the  books  of  author- 
ity to  which  we  have  referred. 

"  By  our  rules  a  decree  pro  confesso 
may  be  had  if  the  defendant,  on  be- 
ing served  with  process,  fails  to  ap- 
pear within  the  time  required;  or  if, 
having  appeared,  fails  to  plead,  de- 
mur or  answer  to  the  bill  within 
the  time  limited  for  that  purpose; 
or,  if  he  fails  to  answer  after  a 
former  plea,  demurrer  or  answer  is 


120 


PROCEEDINGS  TO  A  DECREE  PRO  OONFESSO. 


[§98. 


to  comply  with  the  requirements  of  the  chancery  procedure 
and  rules  of  practice;  as,  for  example,  for  failure  to  serve  the 
defendant  with  a  copy  of  the  bill  of  complaint  after  his  ap- 
pearance and  demand  for  such  copy  under  the  rules.  There 
are,  however,  certain  requisites  to  the  entering  of  the  default 


overruled  or  declared  insuflBcient. 
The  twelfth  rule  in  equity  prescribes 
the  time  wlien  the  subpoena  shall  be 
made  returnable,  and  directs  that  'at 
the  bottom  of  the  subpoena  shall  be 
placed  a  memorandum  that  the  de- 
fendant is  to  enter  his  appearance 
in  the  suit  in  the  clerk's  oflfice  on  or 
before  the  day  at  which  tiie  writ  is 
returnable;  otherwise  the  bill  may 
be  taken  jiro  confesso.'  The  eight- 
eenth rule  requires  the  defendant  to 
file  his  plea,  demurrer  or  answer 
(unless  he  gets  an  enlargement  of 
the  time)  on  the  rule  day  next  suc- 
ceeding that  of  entering  his  appear- 
ance; and  in  default  thereof  the 
plaintiff  may,  at  his  election,  enter 
an  order  (as  of  course)  in  the  order 
book,  that  the  bill  be  taken  pro  con- 
fesso,  and  thereupon  the  case  shall 
be  proceeded  in  ex  parte,  and  the 
matter  of  the  bill  may  be  decreed  by 
the  court  at  any  time  after  the  ex- 
piration of  thirty  days  from  the  en- 
try of  said  order,  if  the  same  can  be 
done  without  an  answer,  and  is 
proper  to  be  decreed;  or  the  plaint- 
iff, if  he  requires  any  discovery  or 
answer  to  enable  him  to  obtain  a 
proper  decree,  shall  be  entitled  to 
process  of  attachment  against  the 
defendant  to  compel  an  answer,  etc. 
And  the  nineteenth  rule  declares 
that  the  decree  rendered  upon  a  bill 
taken  pro  confesso  shall  be  deemed 
absolute,  unless  the  court  shall  at 
the  same  term  set  aside  the  same,  or 
enlarge  the  time  for  filing  the  an- 
swer, upon  cause  shown  upon  mo- 
tion and  affidavit  of  the  defendant. 
"  It  is  thus  seen  that  by  our  practice 
a  decree  pro  confesso  is  not  a  decree 
as  of  course  according  to  the  prayer 


of  the  bill,  nor  merely  such  as  the 
complainant  chooses  to  take  it;  but 
thut  it  is  made  (or  should  be  made) 
by  the  court,  according  to  what  is 
proper  to  be  decreed  upon  the  state- 
ments of  the  bill,  assumed  to  be 
true.  This  gives  it  the  greater  so- 
lemnity, and  accords  with  the  Eng- 
lish practice  as  well  as  that  of  New 
York.  Chancellor  Kent,  quoting 
Lord  Eldon,  says:  "Where  the  bill  is 
thus  taken  j^^*^  confesso,  and  the 
cause  is  set  down  for  hearing,  the 
course  (says  Lord  Eldon,  in  Geary  v. 
Sheridan,  8  Vea  192j  is  for  the  court 
to  hear  the  pleadings,  and  itself  to 
pronounce  the  decree,  and  not  to 
permit  the  plaintiff  to  take,  at  his 
own  discretion,  such  a  decree  as  he 
could  abide  by,  as  in  the  case  of  de- 
fault by  the  defendant  at  the  hear- 
ing.' Rose  V.  "Woodruff,  4  Johns.  Ch. 
547,  548.  Our  rules  do  not  require 
the  cause  to  be  set  down  for  hearing 
at  a  regular  term,  but,  after  the  entry 
of  the  order  to  take  the  bill  pro  con- 
fesso, the  eighteenth  rule  declares 
that  thereupon  the  cause  shall  be 
proceeded  in  ex  parte,  and  the  matter 
of  the  bill  may  be  decreed  by  the 
court  at  any  time  after  the  expira- 
tion of  thirty  days  from  the  entry  of 
such  order,  if  it  can  be  done  without 
answer,  and  is  proper  to  be  decreed. 
This  language  shows  that  the  matter 
of  the  bill  ought  at  least  to  be  opened, 
and  explained  to  the  court  when  the 
decree  is  applied  for,  so  that  the  court 
may  see  that  the  decree  is  a  proper 
one.  The  binding  character  of  the 
decree,  as  declared  in  Rule  19,  renders 
it  proper  that  this  degree  of  precau- 
tion should  be  taken." 


§  98.]      PKOOEEDINGS  TO  A  DECREE  PRO  CONFESSO.        121 

of  the  defendant  that  must  be  strictly  followed.  These  re- 
quirements are  fixed  by  the  statute  and  the  rules  of  practice 
established  by  the  several  chancery  courts  and  will  be  given 
strict  construction. 

1st.  The  defendant  must  have  been  duly  served  with  pro- 
cess, either  personally  or  constructively.  This  is  indispensable, 
for  it  alone  gives  the  defendant  notice  of  the  pendency  of  the 
suit,  and  upon  it  depends  the  right  of  the  court  to  proceed.'  If 
the  service  is  constructive  by  order  for  publication  or  substituted 
service,  all  the  steps  necessary  to  make  such  service  regular 
and  which  are  required  by  statute  must  appear  to  have  been 
taken,  and  the  court  will  require  a  strict  compliance  with  all 
the  requirements  of  such  a  service.'^ 

2d.  It  must  appear  that  having  been  so  served  the  defendant 
neglected,  within  the  time  specified  by  the  rules  and  practice 
of  the  court,  to  enter  his  appearance  in  the  cause.  This  fact 
may  be  shown  by  the  records  in  the  register's  office,  but  the 
better  practice  is  for  the  solicitor  for  the  complainant  to  show 
the  facts  by  his  own  affidavit;'  that  as  shown  by  the  records 

1  A  decree  upon  default  where  defendant  is  not  served  is  void.  Clark  v. 
Hogle,  52  111.  427;  Outhwite  v.  Porter,  13  Mich.  533;  Barrett  v.  McAllister,  33 
W.  Va.  738;  Tompkins  v.  Wiltberger, 56  IlL  385;  Hurtt  v.  Crane,  36  Md.  29. 

2Triplett  v.  Gill,  7  J.  J.  Marsh. (Ky.)  438;  Batre  v.  Auze's  Heirs,  5  Ala.  173; 
Northcut  V.  Lemery,  8  Ore.  316;  Kirkland  v.  Express  Co.,  57  Miss.  316;  Byram 
▼.  McDowell,  15  Lea  (Tenn.).  581;  Tunno  v.  Robert,  16  Fla.  738. 

3  In  Eaton  v.  Eaton,  33  Mich.  305,  it  was  held  "that  the  order  pro  confesso 
was  premature  and  irregular;  that  it  was  not  proper  to  enter  such  order 
before  the  proof  of  service  of  the  subpoena  was  made  and  filed;  and  that, 
under  the  circumstances  of  this  case  at  least,  good  practice  required  an 
affirmative  showing  that  defendant  had  not  appeared  in  the  cause;  that 
the  order  pro  confesso  being  irregular,  the  subsequent  steps  taken  in  the 
cause  cannot  be  sustained." 

The  following  form  of  affidavit  for  proof  of  non-appearance  may  be  used: 
State  of  Michigan. 
The  Circuit  Court  for  the  County  of  Wayne,  in  Chancery. 

John  Jones,  Complainant,    ) 

V.  V  Affidavit  of  non-appearance. 

William  Smith,  Defendant  ) 

Wayne  County  — ss.  ,,.  ,  .  ,    .       /,    .  j   , 

X.  Y.  Z.,  of  the  citvof  Detroit,  state  of  Michigan,  being  first  duly  sworn, 
deposes  and  says:  That  he  is  t!ie  solicitor  for  the  complainant  in  the  above 
entitled  cause  and  has  the  entire  management  and  conduct  of  said  cause 
for  said  complainant. 

That  as  he  is  informed  and  believes,  and  as  is  shown  by  the  return  ot  tne 
sheriff  on  file  in  said  causa,  the  writ  of  subpoena  was  personally  served 
upon  William  Smith,  the  defendant  herein,  on  the day  of ,  1903; 


122        TROOEEDINGS  TO  A  DECREE  PRO  CONFE880.       [§  9S. 

tlic  service  was  regular,  either  personal  or  constructive;  that 
the  time  for  appearing  has  expired  and  no  appearance  has  been 
entered,  and  no  notice  of  the  appearance,  as  required  by  the 
rules  and  practice  of  the  court,  has  been  served  upon  him. 

that  more  than  fifteen  days  have  elapsed  since  the  service  of  said  writ  as 
aforesaid,  and  no  notice  of  appearance  has  been  served  upon  the  solicitor 
for  the  complainant,  nor  has  the  defendant,  as  appears  f  roni  tlie  records  in 
tins  cause,  entered  or  caused  his  appearance  to  be  entered  as  required  by 
the  rules  and  practice  of  this  court  X.  Y.  Z. 

Subscribed  and  sworn  to  before  me 

this day  of ,  l'JU2. 

X.  L.,  Notary  Public,  Wayne  County,  Michigan. 

If  the  defendant  was  brought  in  by  an  order  for  publication,  make  the 
affidavit  conform  to  the  facts. 

The  order  taking  bill  as  confessed  for  want  of  defendant's  appearance 
may  be  as  follows: 

{Title  of  court  and  cause.) 

On  filing  due  proof  of  personal  service  of  the  subpoena  issued  in  this 
cause  on  the  defendant,  William  Smith,  on  or  before  the  return  day  tiiereof, 
and  more  than  fifteen  days  having  elajised  since  the  service  of  s;iid  writ  of 
subptena,  and  it  appearing  by  proof  that  defendant  has  not  appeared  for 
has  not  appeared  and  answered,  as  the  case  may  bej,  on  motion  oi  X.  Y.  Z, 
solicitor  for  the  complainant,  it  is  ordered  that  tiie  bill  of  complaint  filed 
in  this  cause  be,  and  the  same  is  hereby,  taken  as  confessed  by  the  said  de- 
fendant. William  Smith,  and  that  it  be  referred  to  J.  K..  a  circuit  court 
commissioner,  to  take  proofs  of  the  facts  and  circumstances  stated  in  said 
bill,  and  that  said  commissioner  with  all  convenient  speed  report  to  this 
court  said  proofs,  togetlier  with  his  opinion  thereon. 

The  following  form  may  be  used  when  the  defendant  is  a  non-resident: 

(Title  of  court  and  cause.) 

County  of  Wayne,  ss. 
X.  Y'.  Z.,  being  first  duly  sworn,  deposes  and  says:  That  he  is  the  solicitor 
for  the  complainant  in  the  above  entitled  cause;  tiiat  he  knows  the  de- 
fendant, and  that  said  defendant  resides  out  of  the  state  of  Michigan,  to  wit, 
in  the  city  of  New  York,  in  the  state  of  New  York,  and  that  because  of 
the  continual  absence  of  tiie  said  defendant  from  this  jurisdiction  since 
the  commencement  of  this  cause  he  has  been  unable  to  have  served  upon 
him  the  writ  of  subpoena  issued  herein. 

X.  Y.  Z., 

(Jurat.)  Solicitor  for  Complainant. 

If  the  affidavit  is  upon  information  and  belief,  the  source  of  the  informa- 
tion shou'd  be  stated,  and  a  furtlier  statement  that  deponent  verily  believes 
it  to  be  true. 

If  the  defendant  is  concealed  within  the  state,  the  affidavit  will  be  made 
showing  these  facts,  or  any  other  facts  that  may  be  grounds  for  the  mak- 
ing of  an  order  for  publication. 

The  order  of  publication  for  an  absent,  concealed  non-resident  defend- 
ant may  be  in  the  following  form:  (This  order  may  be  granted  by  a  circuit 
judge  or  a  circuit  court  commissioner.) 
{Title  of  court  and  cause.) 

It  satisfactorily  appearing  to  the  court  by  affidavit  on  file  that  the  de- 
fendant. William  Smith,  is  not  a  resident  of  this  state,  but  resides  in  the 
city  of  New  York,  in  the  state  of  New  York  [or  is  a  resident  of  this  state, 
but  is  now  absent  from  the  state  or  from  his  place  of  residence,  or  is  con- 
cealed within  the  state  for  the  purpose  of  avoiding  service  of  process,  or. 


§  98.]      PKOCEEDINGS  TO  A  DECREE  PEO  CONFESSO.         12S 

3d.  The  order  j^z-o  confesso  must  be  regularly  entered  in  the 
office  of  the  register  in  chancery,  and  before  a  decree  is  made 
it  must  appear  by  affidavit  that  all  the  proceedings  in  the 
cause  have  been  regular  and  in  conformity  to  the  practice. 

that  his  last  place  of  residence  was  in  this  state,  but  that  his  present  place 
of  residence  cannot  be  ascertained],  on  motion  of  X.  Y.  Z.,  complainant's 
solicitor,  it  is  ordered  that  the  said  defendant,  William  Smith,  cause  his  ap 
pearance  to  be  entered  herein  within  three  months  from  the  date  of  this 

order  [or  within months  from  the  date  of  this  order  —  the  time  required 

by  statute]. 

And  in  case  of  his  appearance  that  he  cause  his  answer  to  the  complain- 
ant's bill  of  complaint  to  be  filed  and  a  copy  thereof  to  be  served  on  said 
complainant's  solicitor  within  twenty  days  after  service  on  him  of  a  copy 
of  said  bill  and  notice  of  this  order,  and  that  in  default  thereof  said  bill  be 
taken  as  confessed  by  the  said  defendant.  And  it  is  further  ordered  that 
within  twenty  days  after  tlie  date  hereof  the  said  complainant  cause  a 

notice  of  this  order  to  be  published  in  the ,  a  newspaper  published 

and  circulating  in  said  county,  and  that  said  publication  be  continued 

tlierein  at  least  once  in  each  week  for weeks  in  succession,  or  tliat  he 

cause  a  co|)y  of  this  order  to  be  personally  served  on  said  non-resident  de- 
fendant at  least  twenty  days  before  the  above  named  time  prescribed  for 
his  appearance. 

X.  Y.  Z.,  Complainant's  Solicitor.  O.  P.,  Circuit  Judge. 

Before  the  default  can  be  entered  the  printer  must  furnish  a  copy  of 
the  notice,  as  published,  with  affidavit  of  the  printing  of  the  same  in  the 
newspaper  designated,  which  may  be  in  the  following  form: 

State  of  Michigan,   \ 
County  of  Wayne.     )  ^^       - 

Q.  R.,  being  duly  sworn,  deposes  and  says  that  the  annexed  printed 
copy  of  a  notice  was  taken  from ,  a  newspaper  printed  and  circulat- 
ing in  said  county:  that  said  notice  was  published  in  said  newspaper  for 

consecutive  weeks;  that  tlie  11  est  insertion  thereof  was  on  the day 

of ,  190,J,  and  that  the  last  insertion  was  on  the day  of ,  190'2; 

that  he  is  a  foreman  of  the  ])rinters  [or,  the  printer,  or,  the  clerk  of  the 
printer]  of  said  newspaper  and  knows  the  facts  which  are  stated  herein. 

Q.  R. 

Subscribed  and  sworn  to  before  me 

this day  of ,  A.  D.  1902. 

,  Notary  Public,  Wayne  County,  Michigan. 

The  printer's  bill,  receipted,  should  be  appended. 

The  affidavit  of  defendant's  non-appearance  will  be  in  accordance  with 
the  form  already  given,  substituting  the  facts  of  publication  and  failure  to 
appear,  etc. 

The  order  taking  the  bill  as  confessed  after  publication  may  be  in  the 
following  form: 

(Title  of  court  and  cause.) 

On  filing  due  proof  of  publication  of  notice  of  the  order  requiring  the  de- 
fendant, William  Smith,  to  appear  and  answer  the  bill  in  this  cause  [or,  in 
case  the  order  has  been  served  as  directed,  on  filing  due  proof  of  service  of 
the  order  requiring  the  defendant  William  Smith  to  appear  and  answer 
the  bill  in  this  cause],  and  the  time  limited  in  said  order  having  expired, 
and  on  reading  and  filing  due  proof  that  said  defendant,  William  Smith, 
has  not  appeared,  on  motion  of  X.  Y.  Z.,  solicitor  for  the  complainant,  it  is 
ordered  that  the  bill  of  complaint  which  is  filed  in  this  cause  be  and  the 
same  is  taken  as  confessed  by  said  defendant,  William  Smith.  And  it  is 
further  ordered  that  it  be  referred  to  J.  K.,  one  of  the  commissioners  of 


12-i  PKOCEEDINGS    TO    A    DECREE    PRO    CONFESSO.  [§  90. 

This  affidavit  is  called  an  affidavit  of  regularity,  and  is  for  the 
convenience  of  the  court  who  hears  the  cause.  The  default 
of  the  defendant  having  been  regularly  entered,  the  case  may 
be  brought  on  for  hearing  upon  proofs  to  be  taken  in  open 
court,  as  provided  by  the  statutes  in  most  of  the  states;  or, 
the  cause  may  be  referred  to  a  master  in  chancery,  in  some 
states  called  a  commissioner,  or  a  circuit  court  commissioner, 
to  take  the  proofs,  and,  when  taken,  the  cause  will  be  heard 
by  the  court  upon  the  proofs  so  taken  by  the  master.  The 
course  of  proceeding  is  governed  by  the  statutes  and  rules  of 
practice  in  the  different  jurisdictions.  The  defendant  may 
appear,  however,  at  any  time  before  his  default  is  entered  for 
non-appearance,  even  though  the  time  for  his  appearance  as 
fixed  by  rule  of  the  court  has  expired. 

§  99.  Default  for  failure  to  demur,  plead  or  answer. — 
Should  the  defendant  enter  his  appearance  in  the  cause,  but 
fail  within  the  time  prescribed  by  rule  to  either  demur,  plead 
or  answer  to  the  bill  of  complaint,  upon  that  fact  properly 
appearing  the  complainant  may  enter  the  defendant's  default 
and  proceed  to  a  decree  pro  confesso.  The  failure  of  the  de- 
fendant to  comply  with  the  rules  and  practice  in  this  respect 
should  be  shown  by  affidavit,  generally  of  the  complainant's 
solicitor,  showing  that  the  defendant  appeared  in  the  cause; 
that  a  copy  of  the  bill  of  complaint  has  been  duly  served  upon 
him;  that  the  time  has  expired  for  the  defendant  to  demur, 
plead  or  answer,  and  that  he  has  failed  to  do  so.  The  defend- 
ant may  tile  and  serve  his  demurrer,  plea  or  answer  at  any 
time  before  his  default  is  regularly  entered,  regardless  of  the 
fact  that  the  time  fixed  within  which  he  can  answer,  demur  or 
plead  has  expired. 

this  court  residing  in  the  county  of  Wayne,  to  take  proof  of  the  facts  and 
tlie  circumstances  stated  in  the  bill  in  this  cause,  and  that  the  said  commis- 
sioner take  proofs  of  facts  and  circumstances  set  forth  in  said  bill,  and 
with  all  convenient  speed  report  to  this  court  said  proofs  and  his  opinion 
thereon. 

[If  the  case  be  a  mortgage  foreclosure,  or  a  case  demanding  computation, 
the  following  may  be  added:] 

And  that  the  said  commissioner  do  examine  the  complainant  on  oath  as 
to  any  payments  that  may  have  been  made  to  him.  or  to  any  jjerson  for 
his  use,  on  account  of  the  demand  mentioned  in  the  bill  in  this  cause,  and 
which  ought  to  be  credited  on  such  demand.  And  that  the  said  commis- 
sioner compute  and  ascertain  the  amount  actually  due  tlie  complainant 
from  the  said  defendant,  with  the  interest  thereon  to  the  date  oi'  his  report. 

O.  P.,  Circuit  Judge. 


§  100.]  PROCEEDINGS    TO    A    DECREE    PRO    CONFESSO.  125 

§  100.  Appearance  of  defendant  entitles  liim  to  notice 
of  subsequent  proceedings. —  The  appearance  of  the  defend- 
ant, even  though  he  does  not  demur,  plead  or  answer,  entitles 
him  to  a  notice  of  every  step  taken  in  the  cause,  and  he  may, 
by  himself  or  his  solicitor,  be  present  whenever  any  proceed- 
ings are  had  in  the  case,  and  may  cross-examine  witnesses  pro- 
duced by  the  complainant,  but  cannot  introduce  any  new  or 
alBrmative  proof.  He  may  also  file  exceptions  to  the  report 
of  the  master  to  whom  the  case  was  referred,  and  resist  its 
approval.  It  is  his  privilege  also  to  object  to  the  decree  being 
entered  because  of  failure  of  proper  allegations  in  the  bill,  or 
proof  to  sustain  it.^  The  rights  of  the  defendant,  however,  in 
this  respect  are  largely  governed  by  statutes  passed  in  the  dif- 
ferent states,  but  this  right  of  the  defendant  to  notice  of  all  the 
proceedings  seems  to  have  been  recognized  by  the  early  hold- 
ings of  the  New  York  chancery  court. 

In  Hart  v.  SmalP.  the  chancellor  said  "that  where  a  de- 
fendant had  appeared  by  a  solicitor  he  was  entitled  to  notice 
of  all  subsequent  proceedings  in  the  cause,  although  he  had 
suffered  the  complainant's  bill  to  be  taken  as  confessed  for 
want  of  an  answer."' 

In  the  case  of  Railroad  Co.  v.  Achley,^  "  where  a  decree 

1  Moore  v.  Titman,  33  111.  358.  In  M  Paige  (N.  Y.),  551. 
Gault  V.  Hoagland,  25  111.  266,  the  3  Jenny  v.  OTlynu,  5  Mich,  215. 
court  say:  "A  decree  pro  confcsso.  In  Detroit,  etc.  Ins.  Co.  v.  Renz,  33 
as  we  understand  it,  concludes  the  Mich.  298,  299,  the  court  say:  "Good 
party  only  as  to  the  averments  in  practice  requires  that  a  defendant 
the  bill.  He  cannot,  on  error,  allege  who  has  appeared  in  the  cause 
the  want  of  testimony,  or  the  insuf-  should  have  such  notice  of  the  entry 
ficiency  or  amount  of  the  evidence  of  the  decree  as  will  afford  him  an 
the  court  may  have  heard.  The  rule  opportunity  to  attend  and  be  heard 
is  well  settled  that  a  defendant  in  upon  the  settlement  thereof."  And 
chancery  canuot,  on  error,  object  in  Cook  v.  Finch,  96  Mich-  525,  it 
to  the  sufficiency  of  complainant's  was  held  that  ex  parte  proceedings 
proof  when  the  bill  is  taken  for  by  the  complainant  after  the  appear- 
confessed.  It  is  in  such  case  discre-  ance  of  the  defendant  in  the  cause, 
tionary  with  the  court  to  require  and  a  demand  of  a  copy  of  the  bill 
proof  or  not.  Manchester  et  aL  v.  without  notice  to  the  defendant,  are 
McKee.  Ex'r,  4  Gilm.  517;  Johnson  irregular  and  void. 
V.  Donnell,  15  111.  98.  He  may,  how-  <  171  111.  100;  Armstrong  v.  Build- 
ever,  on  error,  contest  the  sufficiency  ing  Ass'n,  176  111.  298;  Monarch 
of  the  bill  itself,  and  insist  that  the  Brewing  Co.  v.  Wolford,  179  IlL 
averments  contained  in  it  do  not  252, 
justify  the  decrea" 


120  PROCEEDINGS    TO    A    DECREE    PRO    CONFESSO.  [§  lOL 

fro  confesso  has  been  entered  against  a  party,  he  cannot, 
on  error,  allege  the  want  of  testimony  or  the  insufficiency  of 
the  evidence  the  court  may  have  heard,  but  the  party  has  the 
right  to  contest  the  sufficiency  of  the  allegations  of  the  bill 
and  insist  that  the  averments  of  the  bill  do  not  justify  the 
decree.  By  a  demurrer  all  material  allegations  well  pleaded 
are  admitted.  The  same  rule  may  be  applied  where  there  is 
a  default.  The  question  then  presented  by  this  record  is 
whether,  conceding  the  averments  of  the  bill  to  be  true,  they 
are  sufficient  to  authorize  the  decree  rendered  by  the  court." 

§  101.  Facts  admitted  by  defendant's  default. —  The  de- 
fendant having  been  served  with  process,  either  personally  or 
constructively,  and  failing  to  appear  in  the  cause,  or,  having 
appeared,  failing  to  demur,  plead  or  answer  to  the  complain- 
ant's bill  of  complaint,  is  held  to  "  confess  "  or  admit  the  facts 
that  are  well  pleaded  in  the  bill,  but  not  immaterial  or  imper- 
tinent matter,  and  the  decree  is  taken  jf?ro  confesso. 

If  the  allegations  in  the  bill  are  uncertain  and  indefinite,  but 
sufficient  as  a  pleading,  the  complainant  should  take  proofs  suf- 
ficient to  make  the  case  more  certain ;  and  it  may  be  said  that 
usually  the  complainant  cannot  rest  entirely  upon  the  allega- 
tions in  the  bill,  for  there  are  certain  facts  which  of  necessity 
should  be  shown  the  court  that  are  not  clearly  set  forth  in  the 
bill,  and  such  facts  should  be  proven  before  a  decree  can  be 
entered. 

In  Ward  v.  Jewett  ^  the  chancellor  said :  "  The  only  remain- 
ing question  is,  whether  the  allegations  of  the  bill  were  suffi- 
cient to  charge  the  defendant,  without  further  proof.  The 
rule  on  this  subject  is  this:  If  the  allegations  are  sufficiently 
clear  and  positive  to  establish  a  fact  without  other  proof,  it 
need  not  be  adduced;  but  if  they  are  vague  and  indefinite, 
further  proof  should  be  given." 

But  it  has  been  held  that  the  decree,  where  the  bill  is  taken 
as  confessed,  cannot  be  based  on  anything  not  alleged  in  the 
bill;  that  the  decree j9/'o  <%>7?/(gs50  cannot  exceed  the  limits  of 
the  case  made  by  the  bill.     This  admission  is  upon  the  theory 

1  Walk.  Ch.  (Mich.)  45;  Williams  v.  v.  Farnsworth,  27  Mich.  52;  Johnson 
Corwin.  Hopk.  Ch.  Prac.  (N.  Y.)  534;  v.  Kelly,  80  Ala.  135;  Atkins  v. 
Covell  V.  Cole,  16  Mich.  223;  Gris-  Faulkner,  11  la.  326;  Spears  v.  Cheat- 
wold  V.  Fuller,  33  Mich.  268;  McCabe  ham,  44  Miss.  64. 


§  101.]  PKOCEEDINGS   TO    A    DECREE    PKO    CONFESSO.  127 

that  if  the  defendant  had  wished  to  controvert  the  truth  of 
any  of  the  allegations  of  the  bill  he  would  have  put  them  in 
issue  by  a  plea  or  answer,  and,  not  having  done  so,  he  will  be 
precluded  from  introducing  evidence  for  that  purpose. 

In  Henry  v.  Seager '  it  was  held  that,  the  defendant  having 
been  given  an  opportunity  to  answer  the  bill,  of  which  he  re- 
fused to  avail  himself,  but  allowed  the  decree  j^w  confesso  to 
be  taken  against  him,  the  chancellor  need  not  have  heard  any 
evidence;  that  the  defendant  will  be  held,  in  such  case,  to 
have  admitted  the  truth  of  all  the  allegations  of  the  bill  which 
were  well  pleaded,  and  that  the  court  will  look  solely  to  the 
allegations  of  the  bill  to  determine  the  correctness  of  the  de- 
cree; that  the  sole  question  is  whether  the  allegations  of  the 
bill  are  sufficient  to  justify  the  decree. 

In  the  United  States  court  it  is  provided  by  rule:^  "It  shall 
be  the  duty  of  the  defendant,  unless  the  time  shall  be  other- 
wise enlarged,  for  cause  shown,  by  a  judge  of  the  court,  upon 
motion  for  that  purpose,  to  file  his  plea,  demurrer  or  answer 
to  the  bill,  in  the  clerk's  office,  on  the  rule-day  next  succeed- 
ing that  of  entering  his  appearance.  In  default  thereof  the 
plaintiff  may,  at  his  election,  enter  an  order  (as  of  course)  in 
the  order-book,  that  the  bill  be  taken  pro  confesso;  and  there- 
upon the  cause  shall  be  proceeded  in  ex  parte,  and  the  matter 
of  the  bill  may  be  decreed  by  the  court  at  any  time  after  the 
expiration  of  thirty  days  from  and  after  the  entry  of  said 
order,  if  the  same  can  be  done  without  an  answer,  and  is  proper 
to  be  decreed ;  or  the  plaintiff,  if  he  requires  any  discovery  or 
answer  to  enable  him  to  obtain  a  proper  decree,  shall  be  en- 
titled to  process  of  attachment  against  the  defendant  to  com- 
pel an  answer,  and  the  defendant  shall  not,  when  arrested 
upon  such  process,  be  discharged  therefrom,  unless  upon  filing 
his  answer,  or  otherwise  complying  with  such  order  as  the 
court  or  a  judge  thereof  may  direct,  as  to  pleading  to  or  fully 
answering  the  bill,  within  a  period  to  be  fixed  by  the  court  or 
judge,  and  undertaking  to  speed  the  cause."  And  the  supreme 
court  has  frequently  passed  upon  it.' 

180  III.  App.  172;  Schoenpflug  v.  ^U.  S.  Ch.  Rule  18. 

Ketcham  (Tenn.,  1898),  52  S.  W.  666;  » Thomson  v.  Wooster,  114  U.  S. 

Roby  V.  Chicago,  etc.  Co.,  94  IlL  App.  104.     In  Bank  v.  Finch,  1  Barb.  C!i. 

379,  62  N.  E.  544.  (N.  Y.)  75,  it  was  held  "  that  a  person 


128  PKOCEEDINGS    TO    A    DECREE    PKO    CONFESSO.       [^§  102,  103. 

§  103.  If  defendant  is  an  infant  or  person  under  dis- 
ability.—  From  what  has  already  been  said  it  will  appear  that 
an  infant  defendant  can  make  no  admissions  by  failure  to  ap- 
pear in  the  cause  after  service  of  process,  or  appearing,  by  fail- 
ing to  demur,  plead  or  answer,  for  the  court  will  not  allow  his 
default  to  be  entered,  but  will  compel  an  appearance  by  guard- 
ian, who  must  look  after  the  rights  of  the  infant.  And  if  there 
is  no  answer,  the  court  will  require  proof  of  the  allegations  in 
the  bill,  for  infants  are  treated  as  the  wards  of  the  court,  being 
under  its  special  protection.^  And  so  it  has  been  held  to  be  a 
general  rule  that  an  infant  cannot  be  prejudiced  by  the  default 
or  admissions  of  his  guardian  ad  litem^  for,  notwithstanding  the 
failure  of  the  guardian,  the  court  will  protect  hira.'^  And  if 
the  defendant  is  an  idiot,  insane,  or  incompetent  person,  the 
court  will  look  after  his  interests,  and  the  rule  as  to  admis- 
sions on  account  of  default  in  appearing  or  defending  the  bill 
will  not  apply,  but  the  complainant  will  be  obliged  to  make 
proof.' 

§  103.  Bill  amended  after  default. —  If  the  bill  of  com- 
plaint is  amended  in  any  material  particular  after  an  order 
pro  confesso,  it  will  be  deemed  to  be  the  substitution  of  a  new 
bill  of  complaint  and  all  previous  decretal  orders  will  be  va- 
cated; the  order  j?r6»  confesso  will  be  void  and  of  no  effect,  and 
no  decree  can  be  based  upon  it. 

In  Gihson  v.  Rees*  the  court  say:  "  It  is,  however,  a  rule  of 
chancery  practice,  that,  by  filing  an  amended  or  supplemental 
bill,  all  previous  decretal  orders  are  vacated  and  defendants 

who  purchases  property  from  a  de-  man   t.   Railway  Co.,  13   Utah,  68; 

fendant  in  a  foreclosure  suit  after  Stephens    v.    Van    Buren,   1    Paige 

the  bill  has  been  taken  as  confessed  (N.  Y.),  479;  Daingerfield  v.  Smith, 

against    him,   takes    such    property  83  Va.  81;  Peck  v.  Adsit,  98Mich.  639; 

subject  to  all  the  rights  of  the  com-  Chandler  v.  McKinney,  6  Mich.  219; 

plainant,  and  is  bound  by  the  ad-  Ralston  v.  Lahee,  8  Iowa,  17;  Price  v. 

mission  made  by  such  defendant  in  Crone,    44    Miss.    571;    Johnston    v. 

suffering  the  bill  to  be  taken  as  con-  Johnston,  138  111.  385. 

fessed  against  him."  s  O'Hara  v.  MacConnell,  93  U.  S. 

1  Long  V.  Mulford,  17  Ohio  St.  485;  151. 

Milly  V.   Harrison,  9  Coldw.  (Tenn.)  *  50  111.  406;  Weightman  v.  Pow- 

171.  ell,  2  De  Gex  &  Smale,  570;  O'Calla- 

2 Moore  v.    Woodall,   40    Ark.    42;  ghan  v.  Blake,  9  Irish  Rep.  220;  Lyn- 

Turner  v.  Jenkins,  79  111.  228;  Chip-  don  v.  Lyndon,  69  lil.  41 


§  104.]     PROCEEDINGS  TO  A  DECREE  PRO  CONFESS©.         129 

may  answer  the  original  and  amended  or  supplemental  bill. 
Such  an  amended  or  supplemental  bill  is  held  to  make  a  new 
case  and  to  authorize  it  to  proceed  as  though  a  decree  jpro 
confesso  had  not  been  rendered." 

In  Ba)ih  v.  Finch^  the  court  say:  "  Where  an  original  bill 
is  taken  as -confessed  and  an  amended  bill  is  subsequently  filed 
making  other  persons  parties,  the  order  jprt?  confesso  is  thereby 
opened."  If  the  amendment,  however,  is  merely  nominal,  and 
in  no  way  introduces  new  or  different  allegations  as  to  the 
title  of  the  plaintiff,  to  the  relief  sought,  or  as  to  the  relief 
itself  in  its  substance  or  form,  it  has  been  held  that  it  would 
not  render  a  subsequent  decree  irregular  or  void.  And  where 
for  want  of  appearance  of  the  defendant,  the  bill  was  taken  as 
confessed  and  was  afterwards  amended  by  stating  the  resi- 
dence of  the  defendant  and  others  residing  in  the  district,  it 
was  held  that  such  an  amendment  was  merely  formal  and  not 
of  sufficient  importance  to  affect  a  decree  based  upon  it.^ 

§  104.  Opening  or  setting  aside  the  default. —  The  prime 
and  paramount  object  of  a  court  of  equity  is  to  do  equal  and 
exact  justice  and  to  arrive  at  a  decree  in  the  case  that  is  in 
every  particular  equitable.  To  this  end  the  court  will  at  every 
stage  of  its  proceedings  extend  its  indulgence  whenever  it  is 
conducive  in  effecting  justice.     The  court  will  therefore  extend 

1  1  Barb.  Ch.  (N.  Y.)  75;  Nelson  v.  was  sought,  nor  the  relief  itself,  in 

Eaton,  66  Fed.  376.  its    substance  or  form,  we  think  it 

^  In  Clason  v.  Corley,  5  Sandf.  (N.  may  be  justly  regarded  as  merely 
Y.)  454,  460,  the  court  say:  "  But  it  formal.  As  the  facts  correspond 
iscontended  that,  by  the  amendment  with  the  amendment,  it  worked  no 
of  the  bill,  his  prior  default  in  not  prejudice  to  the  plaintiff  when  made, 
answering  was  opened  and  super-  nor  does  it  furnish  to  him,  now,  any 
seded,  and  that  as  the  amendment  reasonable  ground  of  complaint, 
was  made  without  notice,  and  no  There  may  have  been  some  irregular- 
copy  of  the  amended  bill  was  served  ity  in  the  proceedings,  which  the 
upon  him,  all  the  subsequent  proceed-  court  in  which  tney  were  had,  upon 
ings,  as  against  him,  must  be  deemed  application,  might  have  corrected, 
irregular  and  void.  To  this  conclu-  but  there  is  no  irregularity  that 
sion,  however,  we  cannot  assent,  would  justify  us  in  holding  the  de- 
Although  the  amendment  of  the  bill  cree  and  the  sale  under  it  to  be 
was  proper,  and  perhaps  necessary  wholly  void.  We  think,  on  the  con- 
to  show  the  jurisdiction  of  the  court,  trary.  that  they  have  given  a  title 
yet  as  it  neither  altered  the  title  of  to  the  defendant  which  the  plaintiff 
the  complainant  to  the  relief  that  ^s  not  at  libertv  to  impeach." 
9 


130  PKOCEEDINGS    TO    A    DECREE    PKO    CONFESSO.       [§§  105,  106. 

leniency  to  defendants  who  have  failed  to  appear  and  answer 
when  in  its  discretion  it  can  find  any  sufficient  excuse  for  the 
omission  upon  which  the  default  rests.  There  is  no  positive 
or  settled  rule  upon  the  subject;  the  interference  of  the  court 
to  relieve  the  defaulted  party  rests  upon  the  sound  discretion 
of  the  court  after  considering  the  facts  and  circumstances  of 
the  case.^  The  opinion  of  Lord  Chancellor  Thurlow  in  a  very 
early  English  case,  Williams  v.  Thompson,^  very  clearly  an- 
nounces the  rule  existing  at  that  time.  The  chancellor  said: 
""Wherever  an  order  is  made  to  take  a  bill  j>ro  coTifesso,  if  the 
defendant  comes  in  upon  any  reasonable  ground  of  indulgence, 
and  pays  costs,  the  court  will  attend  to  his  application,  if  the 
delay  has  not  been  extravagantly  long:  and  where  it  has  been 
so,  the  mere  gratuitously  putting  in  an  answer  is  not  sufficient 
to  overrule  the  order." 

§  105.  When  decree  has  been  taken  upon  an  order  pro 
confesso. —  The  court  will  not  so  readily  extend  its  indulgence, 
however,  to  a  defendant  who  has  permitted  a  decree  to  be 
taken  against  him  on  default;  the  laches  is  presumably  greater, 
and  then  the  facts  of  the  case  have  been  considered  and  a  de- 
cree has  been  given  upon  them.  And  so  it  follows,  the  court 
having  considered  the  facts  in  the  case  and  the  defendant 
having  been  guilty  of  laches  in  allowing  the  case  to  proceed 
through  all  its  stages  upon  his  default,  the  showing  required 
to  set  aside  the  default  will  be  very  much  greater,  for  in  the 
granting  of  such  an  order  the  court  not  only  excuses  the 
laches  upon  the  part  of  the  defendant,  but  is  called  upon  to 
set  aside  the  decree  which  has  been  granted  in  the  case  based 
upon  the  facts  adduced;  because  of  this  the  defendant  will 
be  required  to  show  some  other  and  material  facts  which 
were  not  considered  by  the  court,  and  which,  if  they  had  been 
proven,  would  have  changed  the  findings  and  decree  already 
entered. 

§  106.  The  procedure  for  setting  aside  the  order  pro  con- 
fesso.—  The  defaulting  party  must  move  the  court  by  petition 
filed  in  the  court  and  duly  served  upon  the  opposite  party,  or  his 
solicitor,  setting  up  the  commencement  of  the  cause,  the  object 
of  it,  and  generally  the  substance  of  the  case  and  the  relief 

1  Carter  v.  Torrance,  1 1  Ga.  654.  2  2  Brown's  Ch.  Rep.  280. 


§  lOG.]  PROCEEDINGS    TO    A    DECREE    PRO    OONFESSO.  131 

prayed  for,  the  reasons  for  the  entering  of  the  default,  and  anj 
excuse  for  allowing  the  default  to  be  so  entered,  praying  that  the 
order  pro  confesso  and  decree,  if  one  has  been  granted,  be  set 
aside  and  he  be  permitted  to  appear  and  answer  the  bill  of  com- 
plaint. This  petition  should  be  accompanied  by  affidavits  fully 
proving  the  facts  upon  which  the  petition  is  based,  and  it  is  the 
better  practice  to  accompany  the  petition  and  affidavits  with 
the  answer  to  the  bill  of  complaint  which  the  defendant  pro- 
poses to  file  in  the  cause,  all  of  which  —  the  petition,  a  copy 
of  the  affidavits,  and  a  copy  of  the  proposed  answer  —  should 
be  served  upon  the  complainant's  solicitor,  with  a  notice  of  the 
hearing  of  the  same,  of  at  least  four  days  before  the  day  fixed. 
The  tendering  of  the  answer  with  the  petition  is  very  impor- 
tant, for  the  court  is  thus  made  cognizant  of  the  defense  pro- 
posed by  the  defendant  and  can  judge  whether  it  is  material 
and  effective,  and  whether  the  defendant  ought  in  equity  to  be 
allowed  to  defend.  And  where  the  court  has  found  and  en- 
tered a  final  decree  upon  an  order  pro  confesso,  it  will,  as  a 
general  rule,  refuse  to  set  it  aside  and  allow  the  defendant  to 
interpose  his  defense  until  he  has  exhibited  the  answer  he  pro- 
poses to  file  in  the  cause,  that  the  court  may  judge  of  its  suffi- 
ciency and  the  equity  of  his  defense. 

In  Wells  V.  Cruger^  the  court  say:  "It  is  not  a  matter  of 
course  to  set  aside  an  order  to  take  the  bill  as  confessed,  upon 
a  simple  affidavit  of  merits,  even  before  a  decree;  but  the  court 
may  impose  such  terms  as  are  just  and  reasonable.  And  after 
a  final  decree  is  actually  entered  in  the  cause,  upon  the  bill 
taken  as  confessed,  the  court,  in  addition  to  such  equitable 
terms  as  may  be  proper,  usually  requires  the  defendant  to  ex- 
hibit the  sworn  answer  which  he  proposes  to  file,  so  that  the 
court  may  be  satisfied  as  to  the  nature  of  his  defense  and  the 
sufficiency  of  the  answer."  Where  it  appeared  that  the  de- 
fendant had  been  guilty  of  laches,  though  claimed  to  be  ex- 
cused for  the  reason  that  he  hoped  to  settle  the  case,  the  court 
refused  to  set  aside  the  default  and  decree  and  allow  the  de- 
fendant to  answer;  the  court  remarking  that  it  was  apparent 

15  Paige  (N.  Y.),  163;  State  v.  53  S.  W.  1103;  Eldred  v.  American, 
Murphy,  101  Tenn.  515,  52  S.  W.  736;  etc.  Co.,  103  Fed.  209;  New  England, 
Kelly  V.  Roane  Iron  Co.  (Teun.,  1900),     etc.  Co.  v.  Davis,  122  Ala.  555. 


132 


TEOOEEDINGS   TO    A    DECREE    PKO   CONFE8SO. 


[§  106. 


irom  the  facts  that  the  defendant  was  guilty  of  laches,  and  the 
decree  should  in  no  event  be  opened  upon  any  technical  ground 
unless  a  grave  injustice  to  the  defendant.^ 


1  Wilkinson  v.  Kneeland,  125  Mich. 
261,  7  Detroit  Legal  News,  499,  84  N. 
W.  142.  United  States  Equity  Rule 
19  provides:  "  When  the  bill  is  taken 
pro  confesso,  the  court  may  proceed 
to  a  decree  at  any  time  after  the  ex- 
piration of  tliirty  days  from  and  after 
the  entry  of  the  order  to  take  the 
bill  pro  confesso,  and  such  decree 
rendered  shall  be  deemed  absolute, 
unless  the  court  shall,  at  the  same 
term,  set  aside  the  same,  or  enlarge 
the  time  for  filing  the  answer,  upon 
cause  shown,  upon  motion  and  affi- 
davit of  the  defendant.  And  no  such 
motion  shall  be  granted  unless  upon 


the  payment  of  the  cost  of  the  plaint- 
iff in  the  suit  up  to  that  time,  or 
such  part  thereof  as  the  court  shall 
deem  reasonable,  and  unless  the  de- 
fendant shall  undertake  to  file  his 
answer  within  such  time  as  the  court 
shall  direct.and  submittosuch other 
terms  as  the  court  shall  direct,  for 
the  purpose  of  speeding  the  causa" 
And  where  tiie  answer  filed  with  the 
petition  to  set  aside  a  decre  pro  cotv- 
fesso  did  not  show  a  clear  and  cogent 
defense  to  the  action,  the  court  re- 
fused to  set  aside  the  decree  and  open 
the  casa  Kelly  v.  Iron  Ca  (Tenn. 
Ch.  App.,  1899),  53  S.  W.  1102. 


CHAPTER  YIII. 


DEFENSES  IN  EQUITY. 


§  107.  The  several  kinds  of  defenses. 
L  Demurrer. 

lOa  The  nature  of  the  demurrer. 

109.  A  speaking  demurrer. 

110.  Admissions  by  the  demurrer. 

111.  Extent  of  admissions. 

lia  Kinds  of  demurrer:  (1)  Gen- 
eral; (2)  Special. 

(1)  General  demurrer. 
First. 
113.  Demurrer  for  want  of  juris- 
diction. 

Second. 
114  For  misjoinder  of  causes  of 
action  —  Multifariousness. 

Third. 

115.  For  defects  as  to  parties  — 

(a)  Misjoinder  —  Non- join- 
der. 

116.  (b)  Demurrer  because  of  inca- 

pacity of  parties. 

Fourth. 

117.  For  defects  in   other  allega- 

tions or  want  of  material 
allegations. 
118i  The  demurrer  may  be  to  the 
discovery  sought  as  well  as 
to  the  relief  prayed  for. 

119.  Reasons  for  demurring  to  bill 

praying    relief    applicable 
when  bill  is  for  discovery. 

120.  When  bill  for  relief  and  dis- 

covery, defendant  may  de- 
mur to  the  relief,  or  to  the 
discovery,  or  to  both. 
181.  The  form  of  the  general  de- 
murrer. 


122.  (2)  Special  demurrer. 

123.  Demurrer  ore  tenus. 

124.  Joint  demurrer. 

125.  When  may  the  demurrer  be 

filed. 

126.  The  extent  of  the  demurrer. 

127.  Demurrers  to  billsnot  original. 

128.  Bringing  the  demurrer  to  a 

hearing. 

129.  The  hearing  of  the  demurrer. 
180.  The  judgment  or  decree  upon 

demurrer. 

131.  Demurrer  overruled  by  plea 

or  answer. 

132.  The  effect  of  failing  to  demur. 

IL  Defense  by  Plea. 

133.  The  plea. 

134.  The  plea  should  contain  but 

one  defense. 

135.  The  plea  differs  from  a  de- 

murrer. 

136.  The  plea  differs  from  an  an- 

swer. 

137.  The  extent  of  the  plea. 

138.  Necessary  averments. 

139.  A  division  of  pleas  based  upon 

facts  alleged. 

(a)  Pure  pleas. 

(b)  Negative  pleas,  or  pleas 

not  pure. 

(c)  Anomalous  pleas. 

140.  Admissions  by  the  plea. 

141.  The  plea  overruled  by  answer. 

142.  Pleas  to  the  relief. 
First.  Pleas  in  Abatement. 

143.  Pleas   in   abatement  defined 

and  classified. 
144  (a.)  Pleas  to  the  jurisdiction. 

145.  (b)  Pleas  to  the  person. 

146.  (c)  Pleas  to  the  bill 


134 


DEFENSES    IN    EQUITY. 


Second.  Pleas  in  Bar. 
§  147.  Nature  and  definition. 

148.  Pleas  in  bar  are  of  three  kinds. 
First,    Pleas  Founded    Upon  Some 

Bar  Created  by  Statute. 

149.  Pleas  are  divided. 

150.  (a;  Pleas  of  the  statute  of  lim- 

itation. 

151.  Laches. 

153.  Where  the  case  falls  within 
the  exceptions  to  the  stat- 
ute or  there  is  reasonable 
excuse  for  the  delay. 

153.  Statute  of  limitations  in  cases 

of  trust. 

154.  Constructive  trusts. 

155.  (b)  Pleas    of   the    statute    of 

frauds. 
15d.  (c)  Pleas   founded   upon    any 
statute,  private  or  pub- 
lic. 

157.  The  form  of  pleading  the  sev- 

eral statutes. 
Second.  Pleas  in  Bar  Founded  Upon 
Some  Matters  of  Record. 

158.  When  may  be  interposed. 

159.  Where  the  bill  alleges  fraud 

in  obtaining  the  former  de- 
cree or  judgment. 

160.  Judgments  or  decrees,  foreign 

or  domestic,  legal  or  equi- 
table. 
Third,  Pleas  Founded  on  Matter  in 
Pais. 

161.  Plea. 

16-.  (1)  A  plea  founded  upon  a  re- 
lease. 

163.  (2)  A  plea    founded   upon    a 

stated  account. 

164.  Substance  of  the  plea  of  ac- 

count stated. 

165.  (3)  Plea  of  a  settled  account. 

166.  (4)  A  plea  of  an  avi^ard. 

167.  (5)  A   plea    of    purchase    for 

a  valuable  consideration 
without  notice  of  equities. 

168.  Persons    aflfected    by    notice 

may  have  the  benefit  of  the 
want  of  notice  by  interme- 
diate parties. 


169.  (6)  A  plea  of  title  in  the  de- 

fendant. 

170.  Pleas  to  the  discovery  sought 

171.  The  several  grounds  of  pleas 

to  discovery. 

(1)  Pleas  to  the  jurisdiction. 

(2)  Pleas  to  the  person. 

(3)  Pleas    to    the     bill    or 

frame  of  the  bill 

(4)  Pleas  in  bar. 

172.  The  frame  of  the  plea, 

173.  When  the  plea  must  be  sup- 

ported by  an  answer. 

174.  The  answer  in  support  of  the 

plea  no  part  of  the  defensa 

175.  The  form  of  a  plea. 

176.  The  plaintiflf's  reply. 

177.  Plaintiff  may  amend  his  bill 

after  plea. 

178.  Withdrawing  the  plea. 

179.  The  hearing. 

180.  The  determination  or  decree 

of  the  court  upon  the  hear- 
ing. 

IIL  The  Answer. 

181.  The  answer  of  the  defendant 

in  general. 

182.  The  answer  is  twofold  in  its 

nature  and  effect. 

183.  Requisites  of  the  answer. 

184.  Defenses  which  may  be  inters 

posed  by  answer. 

185.  The  answer  may  be  used  in 

conjunction  with  other  de- 
fenses. 

186.  Answer  may  contain  several 

defenses. 

187.  Discovery. 

188.  The  answer  as  to  matters  of 

discovery  must  be  respon- 
sive. 

189.  The  answer  when  there  are 

several  defendants. 

190.  The  frame  of  the  answer. 

191.  Signing  and  swearing  to  the 

answer, 

192.  The  waiver  of  the  sworn  an- 

swer. 

193.  Compelling  an  answer. 

194.  Amendments. 


§  107.] 


DEFENSES   IN   EQOITY. 


135 


§  195.  Exceptions  to  the  auswer. 

196.  (1)    Exceptions    for     insuffi- 

ciency. 

197.  Exceptions  only  allowed  when 

answer  under  oath  is    re- 
quired. 

198.  When  there  is  an  answer  to  a 

part  of  a  bill,  a  plea  to  a  part, 
or  a  demurrer  to  a  part. 

199.  Exceptions  to  an  answer  to  an 

amended  bill. 

200.  Failing  to    file  exceptions  — 

Effect  of. 

201.  A  demurrer  to  an  answer  un- 

known. 

202.  (2)  Exceptions  for  scandal  and 

impertinence. 

203.  Excepting  to  an  answer  ac- 

companying a  plea  allows 
the  plea. 

204.  Form  of  exceptions. 

305.  Submissions  to  exceptions. 
20G.  Compelling  a  better  answer. 

207.  The  answer  as  evidence. 

208.  The  weight  of  evidence. 

209.  Admissions  in  the  answer. 

210.  The  answer   will   not   afford 

affirmative  relief, 

211.  Some  exceptions. 

212.  The  cross-bill. 

213.  Necessity  and  object  of  cross- 

bill. 

214.  The    relief  sought    must    be 

equitable  relief. 


§  215.  Parties  to  the  cross-bill. 

216.  Cross-bill  by  persons  not  par- 

ties to  the  original  suit. 

217.  The  frame  of  the  cross-bill. 

218.  Substance  or  body  of  the  bill. 

219.  The  prayer  of  the  bill. 

220.  Signing  and  verifying  the  bill. 

221.  Filing  the  bill. 

222.  Leave  to  file. 

223.  Answer  in  the    nature  of  a 

cross-bill. 

224.  Process  when  necessary. 

225.  Defenses  to  the  cross-bill. 

226.  Replication  of  complainant  in 

cross-bill. 

227.  The  hearing. 

rv.  Disclaimer. 

228.  The  nature  of  the  disclaimer. 

229.  When  it  can  be  interposed. 

230.  When   both  an    answer  and 

disclaimer  may  be  filed. 

231.  A  disclaimer  operates  as  an 

estoppel. 

232.  If  the  disclaimer  is  filed  on 

account  of  mistake  or  igno- 
rance. 

233.  Signing,  verifying,  filing  and 

serving. 

234.  The  decree  in  case  disclaimer 

is  filed. 

235.  The  costs. 

236.  A  chart  of  defensea 


§  107.  The  several  kinds  of  defenses. —  The  defendant,  hav- 
ing appeared  in  the  cause  and  obtained  a  copy  of  the  bill  of 
complaint,  may  defend  the  case  made  by  the  complainant  in 
one  of  five  ways: 

I.  He  may  demur  to  the  bill. 
II.  He  may  plead. 
Ill,  He  may  answer. 
lY.  He  may  make  and  file  a  disclaimer. 
Y.  And  where  the  defendant  seeks  affirmative  relief  in  the 
same  controversy  he  may  answer  and  file  a  cross-bill ;  or,  as 
provided  in  some  of  the  states,  an  answer  in  the  nature  of  a 
cross-bill. 


136  DEFENSES   BY   DEMURRER.  [§  108- 


I.  Demukrer. 

§  108.  The  nature  of  the  demurrer. —  A  demurrer  is  a 
pleading  which  rests  the  defense  upon  the  complainant's  bill 
and  asks  the  court  for  judgment  as  to  whether  any  further  de- 
fense shall  be  required.  It  is  derived  from  the  Latin  word 
demorari  and  signifies  to  abide,  and  so  when  the  defendant  in- 
terposes a  demurrer  he  is  said  to  abide  in  the  law,  demoratur 
in  lege;  that  is  to  say,  "  he  will  go  no  further  until  the  court 
has  decided  whether  the  other  party  has  shown  sufficient  matter 
in  point  of  law  to  maintain  his  suit."^  It  rests  upon  the  alle- 
gations of  the  complainant  in  his  bill  of  complaint,  or  upon  the 
lack  of  material  allegations,  or  both.  The  defendant  by  this 
plea  says,  admitting  all  the  facts  that  are  well  pleaded  in  the 
bill  of  complaint  to  be  true,  the  court  cannot,  as  matter  of  law, 
grant  the  relief  prayed  for  in  the  bill;  it  raises  an  issue  of  law 
and  no  other  questions  of  fact,  except  those  apparent  upon  the 
face  of  the  bill  either  from  allegations  there  made  or  want  of 
allegations  necessary  to  be  made,  can  be  relied  upon.  To  the 
complaint  alone  the  court  will  look  upon  the  hearing,  for  upon 
it  alone  must  the  decree  be  based.^     A  demurrer,  in  form  and 

1  Story,  Eq.  PI.,  sec.  441;  Coop.  Eq.  Metier,  8  C.  E.  Green,  273."  Flynn  v. 
PI  110;  3  Blk.  Comm.  314  Third  Nat.  Bank.   122  Mich.  642,  81 

2  In  Vail's  Ex'rs  v.  Railway  Ca.  23  N.  W.  572.  In  Verplank  et  aL  v. 
N.  J.  Eq.  466,  the  court  say:  "The  Caines,  1  Johns.  Ch.  57,  the  chancel- 
general  demurrer  raises  the  question  lor  said:  "A  demurrer,  as  Lord 
whether,  upon  the  bill  taken  as  true,  Loughborough  observed  in  the  case 
any  matter  appears  whereon  the  of  Brooke  v.  Hewitt  (3  Ves,  Jun.  253), 
court  can  make  a  decree  or  give  the  must  be  founded  upon  some  certain 
complainants  any  relief.  A  demurrer  and  absolute  proposition  destructive 
will  lie  wherever  it  is  clear  that,  to  the  relief  sought  for;  it  must  be 
taking  the  charges  in  the  bill  to  be  founded  upon  some  dry  point  of  law 
true,  the  bill  would  be  dismissed  at  and  not  on  circumstances  in  which 
the  hearing;  but  it  must  be  founded  a  minute  variation  may  incline  the 
on  this:  that  it  is  an  absolute,  certain  court  either  to  grant,  modify,  or  re- 
and  clear  proposition  that  it  would  fuse  the  application.  The  demurrer 
be  so.  Where  the  demurrer  is  gen-  is,  as  to  this  object,  clearly  bad;  and 
eral  to  the  whole  bill  and  there  is  the  rule  seems  to  be  settled  that  a 
any  part,  either  as  to  the  relief  or  demurrer  is  not  like  a  plea,  which 
the  discovery,  to  which  the  defend-  can  be  allowed  in  part;  it  cannot  be 
ant  ought  to  put  in  an  answer,  the  separated;  and  if  bad  in  part  it  is 
demurrer,  being  entire,  must  be  over-  void  in  toto."  Earl  of  Suffolk  v. 
ruled.  1  Daniell,  Ch.  PI.  &  Pr.  (4th  Green,  1  Atk.  449;  Huggins  v.  York 
Am.  ed.)  543,  584;  Metler's  Adm'rs  v.  Buildings,  2  Atk.  44;  Dormer  v.  For- 


§  109.] 


DEFENSES   BY   DEMURRER. 


131 


in  substance,  denies  the  right  of  the  complainant  to  have  his 
case  considered  by  the  court,  admitting  that  all  the  allega- 
tions of  the  bill,  which  are  properly  pleaded,  are  true.^  And 
so  it  follows  that  a  demurrer  proceeds  upon  the  ground  tiiat 
assuming  the  facts  stated  in  the  bill  to  be  true,  the  plaintiff  is 
not  entitled  to  the  relief  he  seeks.  And  for  the  purpose  of  the 
aro-ument  it  is  held  that  all  the  matters  of  fact  which  are  stated 
in  the  bill  are  admitted  by  the  demurrer  and  cannot  be  dis- 
puted upon  the  argument;  such  admissions  extending  to  the 
whole  manner  and  form  in  which  the  allegations  are  stated. 

§  109.  A  speaking  demurrer. —  When  the  demurrer  is  de- 
pendent upon  facts  not  apparent  upon  the  face  of  the  bill  it  is 
■called  a  speaking  demurrer,  and  will  be  overruled ;2  but  the 
introduction  of  immaterial  facts  —  facts  which  are  not  neces- 
sary to  support  the  demurrer  which  constitutes  mere  surplus- 
age —  will  not  vitiate  it.'     The  facts  shown  by  the  bill  can 


tesque,  8  Atk.  282,  and  other  author- 
ities. In  Gallagher  v.  Roberts,  1 
Wasli.  C.  C.  320,  Fed.  Gas.  No.  5,194, 
it  was  said  "that  the  defendant 
should  demur  to  a  bill  in  equity  that 
-contains  no  ground  for  relief."  John- 
son V.  Roberts,  102  111.  655;  Bliss  v. 
Parks,  175  Mass.  539,  56  N.  K  566. 
In  Women's  Catholic  Order  of  For- 
esters V.  Haley,  86  IlL  App.  330,  it 
was  held  that  a  defendant  by  filing 
a  general  demurrer  admitted  the 
allegations  of  fact  properly  pleaded 
in  the  bill  to  be  true. 

1  Stroup  V,  Chalcraft,  52  111.  App. 
608.  If  the  illegality  of  a  contract 
is  depended  upon  by  the  defendant 
he  cannot  take  advantage  of  it  by 
demurrer  unless  the  illegality  ap- 
pears upon  the  face  of  the  bill 
Fairbank  v.  Leary,  40  Wis.  644; 
Heavenridge  v.  Mondy,  34  Ind.  35. 
"  A  demurrer  will  lie  wherever  it  is 
clear  that,  taking  the  charges  in  the 
bill  to  be  true,  the  bill  would  be  dis- 
missed at  the  hearing;  but  it  must 
be  founded  on  this:  that  it  is  an  abso- 
lute, certain  and  clear  proposition 
'that  it  would  be  so;  for  if  it  is  a 
case  of  circumstances  in  which  a 


minute  variation  between  them  as 
stated  by  the  bill,  and  those  estab- 
lished by  the  evidence,  may  either 
incline  the  court  to  modify  the  re- 
lief or  to  grant  no  relief  at  all,  the 
court,  although  it  sees  that  the 
granting  the  modified  relief  at  the 
hearing  will  be  attended  with  con- 
siderable difficulty,  will  not  support 
a  demurrer."  1  Daniell,  Ch.  PI.  & 
Pr.  (4th  ed.)  543. 

2  Story,  Eq.  PL,  sec.  448.  In  Browns- 
word  V.  Edwards,  2  Ves.  Sen.  243, 
Lord  Hardwicke  said:  "As  this  is  a 
question  upon  the  legal  title  to  an 
estate  on  the  construction  of  a  will, 
if  there  was  any  doubt,  I  should  not 
determine  it  on  demurrer;  but  would, 
notwithstanding  the  inclination  of 
my  opinion  might  be  in  favor  of  de- 
fendant, overrule  the  demurrer  with- 
out prejudice  to  defendant's  insist- 
ing on  the  same  matters  by  way  of 
answer;  so  that  it  might  more  fully 
come  before  the  court  at  the  hear- 
ing." 

3  Daniell,  Ch.  PI.  &  Pr.  (2d  Am.  ed.) 
657.  A  demurrer  setting  out  facts 
which  do  not  appear  on  the  face  of 
the  bill  is  bad  as  a  speaking  demurrer. 


138  DEFENSES   BY  DEMURRER.  [§  110. 

alone  be  relied  upon;  when  it  becomes  necessary  to  exhibit  dif- 
ferent or  other  facts  in  order  to  defend  against  the  bill,  a  plea 
or  answer  and  not  a  demurrer  will  be  required. 

§  110.  Admissions  by  the  demurrer. —  While  it  is  a  general 
rule  that  a  demurrer  admits  all  the  facts  that  are  well  pleaded 
in  the  bill  of  complaint  to  be  true,  this  rule  must  be  carefully 
construed.  It  is  well  pleaded  facts  and  not  conclusions  of  law, 
or  argument  from  the  pleaded  facts,  that  are  admitted.^ 

In  Le  Baron  v.  /Shepherd,^  wherein  the  bill  of  complaint 
made  a  general  statement  bearing  upon  the  general  effect  of  a 
devise,  it  was  held  that  a  demurrer  would  not  admit  the  con- 
struction of  the  devise  to  be  as  claimed  by  the  complainant. 
The  court  say :  "  It  is  very  clear  that  the  general  statements 
in  the  bill  bearing  upon  the  legal  eflfect  of  the  devise  are  of 
no  importance;  they  would  have  been  without  consequence  if 
the  defendant  had  rested  the  case  on  a  demurrer,  since  a  de- 
murrer would  not  admit  the  complainant's  construction  of  the 
w^ll,  and  statements  of  the  kind  in  question  would  not  be  the 
subject  of  an  issue  of  fact."  And  so  where  a  written  instru- 
ment is  set  forth  in  the  bill,  or  attached  to  it  and  referred  to 
as  apart  of  it,  the  court  on  a  demurrer  to  the  bill  will  not  treat 
an  allegation  as  to  its  legal  effect  or  construction  as  true,  but 
will  look  to  the  instrument  itself,  construing  it  according  to 

Mengel  v.  Coal  &  Nav.  Co.,  24  Pa.  Co,  Smith  v.  Reynolds,  9  App.  D.  C.  261; 

Ct.  Rep.  152;  Clarke  v.  Land  Co.,  113  Sturbuck  v.  Loan  Co.,  51  N.  Y.  S.  8; 

Ga.  21,  38  S.  E.  323.  Gusdorflf   v.  Schleisner,  85   Md.  360, 

1  Stow  V.  Russell,  36  111.  18;  Newell  37  AtL  170.  Upon  the  argument 
V.  Bureau  Co.,  37  111.  253.  Does  not  statementsof  conclusions  of  law  may 
admit  arguments  or  legal  conclu-  be  disregarded.  Dillon  v.  Barnard, 
sions.  Johnson  v.  Roberts,  102  111.  21  Wall.  (U.  S.)  430;  Louisville,  etc. 
655.  R.  Co.  V.  Palmes.  109  U.  S.  244.     Nor 

2  21  Mich.  263,  275;  1  Daniell,  Ch.  PL  are  the  correctness  of  allegations  in 
&  Pr.  566,  567;  Games  v.  Robb,  8  Iowa,  a  bill  as  to  the  construction  of  a  stat- 
193;  Smith  V.  Henry  Co.,  15  Iowa,  385;  ute,  or  a  grant  or  other  document 
Lea  et  al.  v.  Robeson  et  a!.,  12  Gray  or  official  act  that  complainant  in- 
(Ma.sa),  280;  Craft  v.  Thompson,  51  sists  upon  as  the  foundation  of  his 
N.  H.  536;  Pearson  v.  Tower,  55  N.  H.  claim  admitted,  by  a  demurrer,  for 
36;  Everett  v.  Drew,  129  Mass.  150;  their  construction  is  always  a  ques- 
Jones  V.  Dow,  137  Mass.  119;  Brook  v.  tion  of  law  for  the  court.  Maese  v. 
Widdicombe,  39  Md.  386;  Minnesota,  Hermann,  17  App.  D.  C.  52.  Douglas 
etc.  Ry.  Co.  v.  Hiams,  53  Iowa,  501;  v.  Phenix  Ins.  Co.,  63  Hun  (N.  Y.), 
Worley  v.  Moore,  77  Ind.  567;  God-  393;  Armatage  v.  Fisher,  74  Hun 
dard  v.  Stockman,  74  Ind.  400;  Don-  (N.  Y.),  167;  McCormick  v.  Riddle,  10 
aldson  v.  Wright,  7  App.  D.  C.   45;  Mont.  470. 


110.] 


DEFENSES   BY   DEMURRER.  139 


its  legal  import.     And  where  a  bill  was  filed  praying  that  the 
defendants  might  be  declared  trustees  for  the  benefit  of  the 
complainants  of  the  property  held  by  them  under  a  certam 
indenture,  a  copy  of  which  was  annexed  to  the  bill  of  com- 
plaint to  which  the  defendant  demurred,  the  court,  in  render- 
ino.  its  opinion  as  to  the  facts  admitted  by  the  demurrer,  say: 
"The  averments  of  the  bill  as  to  the  purport  and  meamng  of 
the  provisions  of  the  indenture,  the  object  of  their  insertion  m 
the  instrument,  and  the  obligations  they   imposed  upon  the 
corporation  and  the  trustees,  and  the  rights  they  conferred 
upon  the  plaintiff  when  his  contract  was  approved,  are  not 
admitted  by  the  demurrer.     These  are  matters  of  legal  infer- 
ence, conclusions  of  law  upon  the  construction  of  the  indent- 
ure    and  are  open  to  contention,  a  copy  of  the  instrument 
itse'lf  beino-  annexed  to  the  bill,   and,  therefore,  before  the 
court  for   inspection.      A  demurrer  only  admits  facts  well 
pleaded;  it  does  not  admit  matters  of  inference  and  argument 
however  clearly  stated;  it  does  not  admit,  for  example,  the 
accuracy  of  an  alleged  construction  of  an  instrument,  when 
the  instrument  itself  is  set  forth  in  the  bill,  or  a  copy  is  an- 
nexed, against  a  construction  required  by  its  terms;  nor  the 
correctness  of  the  ascription  of  a  purpose  to  the  parties  when 
not  justified  by  the  language  used."  '    Kor  would  a  demurrer 
admit,  as  correct  and  binding  upon  the  parties,  the  construc- 
tion of  a  statute  set  up  and  contended  for  in  the  bill  of  com- 
plaint, for  this  would  be  a  question  for  the  court  on  the  hear- 
ing and  the  admission  or  denials  of  the  parties  in  the  cause 
would  not  afifect  the  construction  the  court  would  be  bound  to 


give  it.^ 


So  a  mere  statement  in  the  bill  of  complaint  that  the  de- 
fendant induced  the  contract  or  a  conveyance  by  fraudulent 
representation,  or  by  fraud  without  alleging  facts  which  con- 
stitute a  legal  fraud,  would  not  be  admitted  upon  a  demurrer, 
but  would  be  treated  simply  as  a  legal  conclusion.  And  where 
a  bill  was  tiled  to  restrain  defendants  from  operating  a  mine, 
the  allegations  in  the  bill  being  that  the  defendants  induced 

1  Dillon  V.  Barnard,  21  Wall.  (U.  S.)  C  C).  67  Fed.  980;  Park,  etc.  Bank  v. 

430  437.     The  exhibits  filed  with  the  Haley,  3  III  App.  17. 
bill    on    demurrer  will  be    read  as        ^Maese  v.  Hermann,  17  App.  D.  C. 

part  of  it.     Ulman  v.  laeger  (U.  S.  52. 


140  DEFENSES   BY  DEMURRER.  [§  1  li- 

the complainant's  partner  to  refrain  from  filing  a  claim  under 
a  fraudulent  scheme  which  amounted  to  a  colorable  fraud  and 
breach  of  trust,  it  was  held  that  these  allegations  were  mere 
legal  conclusions  and  were  not  admitted  by  a  demurrer  to  a 
bill.'  And  in  AmUer  v.  Choteau"^  the  court  say:  "The  words 
'fraud '  and  'conspiracy '  alone,  no  matter  how  often  repeated 
in  a  pleading,  cannot  make  a  case  for  the  interference  of  a 
court  of  equity.  Until  connected  with  some  specific  acts  for 
which  one  person  is  in  law  responsible  to  another  they  have 
no  more  effect  than  other  words  of  unpleasant  signification. 
While  in  this  case  the  offensive  words  are  used  often  enough, 
the  facts  to  which  they  are  applied  are  not  such  as  to  make 
the  defendants  answerable  to  the  complainant  for  the  dam- 
xiges  and  other  relief  he  asks."'  Allegations  in  the  bill  which 
are  based  upon  information  and  belief  are  not  admitted  as 
facts  upon  a  demurrer.* 

§  111.  Extent  of  admissions. —  The  admission  of  the  de- 
fendant by  his  demurrer,  that  all  the  facts  well  pleaded  in  the 
bill  of  complaint  are  true,  only  extends  to  the  issue  raised  by 
the  demurrer,  for  determining  the  legal  sulTiciency  of  the 
bill.  It  furnishes  the  proof  upon  which  the  court  may  base  the 
settlement  of  the  issue  of  law  raised  by  the  demurrer,  but  goes 
no  further;  if  the  demurrer  be  withdrawn  or  overruled,  and 
the  defendant  is  permitted  to  plead  or  answer,  he  is  not  es- 
topped by  the  admissions  made  by  the  demurrer;  these  admis- 
sions are  only  for  the  purposes  of  the  demurrer  and  its  settlement. 

In  Stinson  V.  Gardiner'''  the  court  say:  "It  cannot  be  con- 
ceded that,  by  demurring  to  a  bad  plea,  the  plaintiff  admitted 
the  facts  therein  stated  as  independent  facts  to  be  used  in  the 
trial  of  other  issues,  in  this  or  any  other  action.  The  effect  of 
the  demurrers  was  to  admit  the  facts  stated  in  the  pleas  for 
the  purpose  of  testing  their  sufficienc}'^  in  law;  but  the  pleas 
having  been  adjudged  bad,  the  admissions  do  not  estop  the 
plaintiff,  or  affect  the  determination  of  his  case."  And  in  Cro- 
gan  v.  Schiele  ®  it  was  held  "  a  demurrer  admits  the  truth  of  the 

1  Lockhart  v.  Leeds  (N.  Max.,  1900),  *  Trimble  v.  American  Sugar  Re- 
63  Pac.  48.  fining  Co.,  61  N.  J.  Ch.  340,  48  AtL 

2  107  U.  S.  586,  591.  912. 

3  Magniac  v.  Thompson,  3  Wall  Jr.  *  33  Me.  94. 

(U.  S.  Ct  Ct.)  209.  6  53  Conn.  186,  208;  Pease  v.  Phelps, 


I  112.]  DEFENSES   BY   DEMURRP^R.  141 

alleged  facts  for  the  sole  purpose  of  testing  their  legal  suffi- 
ciency. If  the  demurrer  is  overruled,  and  the  defendant  an- 
swers over,  the  admission  cannot  be  usjd  as  evidence  against 
him.  It  stands  like  any  other  case  where  the  allegations  of 
fact  are  denied  —  the  facts  are  determined  by  the  proof,  and 
not  by  the  pleadings." 

§  112.  Kinds  of  demurrer. —  Demurrers  are  of  two  kinds: 

(1)  General;  and 

(2)  Special. 

(1)  A  general  demurrer  is  an  objection  to  the  recovery  of 
the  complainant  resting  upon  the  facts  shown  by  the  bill  it- 
self—  facts  which  are  matters  of  substance  rather  than  mat- 
ters of  form. 

It  has  been  said  that  "A  general  demurrer  is  one  going  to 
the  merits  of  the  case  intended  to  be  made  by  the  bill,  and 
when  no  particular  cause  is  assigned,  except  a  formula  required 
by  the  practice  or  rules  of  the  court,  that  there  is  no  equity  in 
the  bill,  and  is  always  proper  where  the  bill  is  defective  in  sub- 
stance." ^  "  A  general  demurrer  challenges  the  equity  of  the 
case  made  by  the  bill,  and  will  be  overruled  if  a  case  for  equi- 
table relief  is  set  out,  however  imperfectly''."^ 

The  causes  for  demurrer  are  arranged  under  four  general 

heads: 

First. 

The  want  of  jurisdiction  in  the  court  in  which  the  bill  is  filed. 

(a)  That  the  case  made  by  the  bill  is  not  within  the  class  of 
cases  of  which  a  court  of  equity  assumes  jurisdiction. 

(5)  That  the  particular  court  in  which  the  suit  was  com- 
menced has  no  jurisdiction  to  try  and  determine  it. 

Second. 
For  misjoinder  of  causes  of  action. 

Third. 
For  defects  as  to  parties, 
(a)  For  misjoinder  or  non-joinder  of  parties. 
(5)  Because  of  incapacity  of  parties. 

10  Conn.   62;    Scovill    v.  Seeley,  14  2  Greenley  v.  Hovey,  115  Mich.  504, 

Conn.  238;  Gray  v.  Finch,  23  Conn.  505;  Glidden  v.  Norvell,  44  Mich.  206; 

495.  Wilmarth   v.    Woodcock,  58   Midi. 

1  Taylor  v.  Taylor,  87  Mich.  64,  68.  484;  Cochrane  v.  Adams,  50  Mich.  16. 


142  DEFENSES   BY   DEMURRER.  [§  113. 

Fourth. 

For  defects  in  other  allegations,  or  want  of  material  alle- 
gations. 

(a)  Want  of  interest  in  complainant. 

(5)   That  defendant  is  not  answerable  to  complainant. 

(c)   Want  of  interest  in  defendant. 

{d)  That  complainant  is  not  entitled  to  the  relief  prayed 

for. 
{e)   That  the  subject-matter  is  not  of  sufficient  value. 
{f)  That  the  whole  controversy  is  not  involved  in  the  suit. 
{g)  That  the  case  made  is  barred  by  the  statute  of  limita- 
tions, or  by  the  statutes  of  frauds. 
(A)  That  there  is  another  suit  pending  for  the  same  subject- 
matter. 
This  analysis  follows  very  nearly  the  analysis  of  Daniell  in 
his  work  on  Equity  Pleading  and  Practice,  and  of  Story  and 

other  writers. 

First. 

§  113.  Demurrer  for  want  of  jurisdiction. — It  must  always 
be  borne  in  mind  that  the  facts  upon  which  the  demurrer  rests 
must  be  apparent  upon  the  face  of  the  bill  of  complaint.  Want 
of  jurisdiction  may  appear  in  one  of  the  following  wa3's: 

[a)  That  the  case  made  by  the  bill  is  one  not  within  the 
class  of  cases  of  which  a  court  of  equity  assumes  jurisdiction. 
This  was  somewhat  discussed  in  a  former  chapter  of  this  work.' 

(J)  That  the  particular  court  in  which  the  suit  was  com- 
menced has  no  jurisdiction  to  try  and  determine  it;  as,  for  ex- 
ample, if  commenced  in  the  United  States  court,  and  the  alle- 
o-ations  in  the  bill  show  that  the  value  of  the  subject-matter  of 
the  controversy  is  of  a  less  amount  than  the  court  will  assume 
jurisdiction  over,  or  that  the  residence  of  the  parties  is  within 
the  same  state  or  territory;  where  jurisdiction  depends  upon 
the  question  of  residence,  or  where  a  case  is  commenced  in  a 
state  court  and  the  amount  involved  appears  by  the  bill  to  be 
less  than  one  hundred  dollars,  that  amount,  at  least,  being  re- 
quired to  give  the  court  jurisdiction.'^ 

1  Ante,  ch.  L  keep  v.  Hook,  8  Pa,  Dist  R.  241.   But 

2Stepheuson  v.  Davis,  56  Me.  73;    where  from  the  general  allegations 

Godfrey  v.  Terrey,  97  U.  S.  171;  Ins-    of  the  bill  it  would  be  fairly  pleaded 


114.] 


DEFENSES    BY   DEMURRER.  143 


Or   because   the   subject-matter   of   the  suit  is  within   the 
jurisdiction  of  some  other  court;  as,  for  example,  where  there 
is  a  full,  complete  and  adequate  remedy  at  law  the  controversy 
should  be  tried  and  determined  in  a  common-law  court,  or 
where  the  case  made  by  the  bill  should  have  been  brought  in 
..ome  other  court  of  equity.     In  most  jurisdictions  the  probate  ,., 
court  has  exclusive  jurisdiction  of  the  settlement  of  estates  of 
deceased  persons,  and  so  a  court  of  equity  would  not  entertam  , 
and  determine  a  suit  involving  the  validity  of  a  will.     And.- - 
where  the  subject-matter  is  within  the  jurisdiction  of  the  court 
of  admiralty  or  bankruptcy,  an  equity  court  would  refuse  to 
entertain  jurisdiction  of  the  cause. 

Second. 
§  114.  For  misjoinder  of  causes  of  action  — Multifarioiis- 
,iess.—  What  is  multifariousness  in  a  bill  of  complaint  has  al- 
ready been  discussed.^  The  defect  of  misjoinder  of  causes  of 
action  must  necessarily  appear  upon  the  face  of  the  bill;  the 
court  cannot,  in  determining  this  question,  look  to  another 
pleading  or  to  the  proofs.^ 

As  we  have  seen,  the  complainant  will  not  be  permitted  to 
unite  several  claims  or  demands  which  are  distinct  from  and 
have  no  dependence  upon  each  other;  he  cannot  m  one  bill 
brino-  into  question  and  have  adjudicated  distinct  and  discord- 
ant Interests.  No  abstract  fixed  rule  can  be  stated  as  to 
what  would  constitute  multifariousness  in  this  respect,  but  the 
courts  have  so  thoroughly  discussed  and  adjudicated  the  ques- 
tion that  it  is  not  difficult  to  discern  when  the  bill  is  defective 
for  misjoinder  of  causes  of  action.'    Whether  the  bill  is  multi- 

that    the    amount   in    controversy  tion  that  there  was  a  complete  rem- 

would  exceed  one  hundred  dollars,  edy  at  law. 

though  not  directly  alleged,  the  court  i^nfe,  §39. 

will  take  jurisdiction.     Mastenbrook  ^Halstead  v.  Shepard,  23  Ala^  5oa 

V.   Alger,   110   Mich.   414.     In   First  =•  Ryan  v.  Shawneetown,  14  II.   4 

Cong.  Sodety,  etc.  v.  Trustees,  etc..  Peck),  20;  Taylor  v.  Kmg   32  Mich. 

23  ptk  (Mass )  148,  it  was  held  that  42,  where  the  court  affirmed  a  decree 

where  the  defendant  had  answered  dismissing  the  bill  as  proper,  saying: 

^.e  bill  and  submitted  to  the  juris-  "The  bill  attempted  to  ^rmg  -  o 

diction  of  the  court,  the  court  hav-  question  and  have  adjudicated  dis^ 

ingjurisdictionofthesubject-matter,  tinct  and  discordant  -terests  and 

it  was  too  late  to  interpose  an  objec  was  liable  to  complamt  for  multi- 


144  DEFENSES    BY   DEMl^RRER.  [§  114. 

farious  is  generally  a  question  to  be  determined  upon  the  facts 
and  circumstances  of  the  particular  case.^  It  should  not  be 
concluded,  however,  that  several  causes  of  action  cannot  be 
united  in  the  same  bill  of  complaint  and  not  be  demurrable, 
for,  as  has  already  been  noticed,  it  is  not  so  much  the  question 
of  several  causes  being  united  as  whether  the  bill  has  but  one 
object.  Where  several  causes  or  subjects  are  united  in  the 
same  bill,  having  but  a  single  purpose  or  object,  and  the  relief 
prayed  for  and  granted  can  be  covered  by  one  decree,  all 
the  subjects  and  causes  for  complaint  being  harmonious  with 
each  other,  the  bill  is  not  subject  to  demurrer  for  misjoinder 
of  caus:'S  of  action  or  multifariousness.  It  is,  as  has  been  said, 
where  the  complainant  demands  several  distinct  matters  of  a 
different  nature  of  several  defendants,  which  are  wholly  un- 
connected, or  which  are  discordant  and  inconsistent,  and  upon 
which  to  grant  relief  would  necessitate  the  finding  of  different 
decrees,  that  there  is  clearly  a  misjoinder  of  causes  of  action.' 

Where  a  bill  was  filed  alleging  that  the  complainant  and 
some  of  the  defendants  were  induced  by  fraudulent  represen- 
tations to  convey  certain  water  rights,  alleging  that  certain 
papers  w^ere  executed  by  owners  of  the  land  through  which  the 
stream  flowed,  and  others  by  mortgagees  of  the  lands,  the  bill 
praying  to  reform  these  conveyances  in  accordance  with  an 
alleged  original  understanding,  it  was  held  demurrable  for  mis- 
joinder of  causes  of  action  for  the  reason  that  the  defendant 
charged  with  the  fraud  is  entitled  to  contest  with  each  party 
the  particular  fraud  claimed  to  be  practiced  upon  him,  although 
it  was  alleged  that  in  fact  the  same  fraud  was  practiced  as  to 
each.^ 

"  There  appears  to  be  no  positive  or  inflexible  rule  as  to 

fariousness.-'    Sherlock  v.  Village  of  Marshall  v.  Means,  13  Ga.  61,  56  Am. 

Winnetka,  59  111.  389.  Dec.  444.     Separate  contracts  made 

1  Eastman  v.  Savings  Bank,  58  N.  with  the  same  individual  respecting 

H.  421.     Where  the  bill  sets  up  dis-  the    same    subject-matter    may    be 

tinct  and  separate  causes  of  com-  combined    in    one   bill      Lynch   v. 

plaint  vrhich  destroy  each  other  and  Johnson,  12  Ky.  (2  Littell),  98. 

seek     different     relief    inconsistent  3  Wheeler  v.  Gleason,  70  N.  Y.  S. 

with  each  other,  it  may  be  said  to  381;  Van  Hise  v.  Van  Hise,  61  N.  J. 

be  multifarious.     Swayze  v.  Swayze,  Oh.  37,  47  Atl  803;  United  States  v. 

9  N.  J.  Eq.  273.  Beebe,    180   U.  S.  343,  45   Law.  Ed. 

2 Chapman  v.  Chunn,  5  Ala,  397;  563. 


^  ]^;[5  1  DEFENSES   BY  DEMURRER.  14:5 

what,  m  the  sense  of  courts  of  equity,  shall  constitute  multi- 
fariousness in  a  bill,  but  each  case  must  in  a  great  measure  be 
governed  by  its  own  circumstances,  and  much  must  be  left  to 
the  discretion  of  the  court.  Nevertheless,  when  it  clearly  ex- 
ists, a  demurrer  will  be  sustained." '  And  it  has  been  said 
that  "  the  substance  of  the  rules  on  the  subject  of  multifarious- 
ness appears  to  be,  that  each  case  is  to  be  governed  by  its  own 
circumstances,  and  must  be  left  in  a  great  measure  to  the  sound 
discretion  of  the  court."  ^ 

Third. 

§  115.  For  defects  as  to  parties  — (a)  Misjoinder  — Non- 
joinder.— Quite  akin  to  multifariousness  or  misjoinder  of 
causes  of  action  is  the  defect  in  a  bill  arising  from  the  mis- 
joinder or  non-joinder  of  parties  complainant  or  defendant. 
Parties  complainant,  in  order  to  be  properly  joined  in  a 
bill  of  complainant  as  such,  should  have  similar  interests;  ,v^ 
should  seek  the  same  object;  be  able  to  support  their  conten- 
tion by  substantially  similar  evidence,  and  be  relieved  by  the 
same  decree ;  for  if  two  or  more  complainants  joined  in  the 
same  bill  have  separate  interests  requiring  separate  and  differ- 
ent relief  and  different  and  dissimilar  lines  of  evidence,  and  a 

1  Kennebec,  etc.  Ry.  Co.    v.  Port-  Va.  434,  34  S.  E.  60 ;  Hilbish'sExecut- 
land  etc.  Ry.  Co.,  54  Ma  173,  183.  ors.  92  Va.  333,  23  S.  E.  751;  Staude 

2  1  Danl.  Ch.  PI.  &  Pr.  334,  note  3;  v.  Keck,  92  Va.  544,  24  S.  E.  227,  and 
Densraora  v.  Savage,  110  Mich.  27,  other  cases.  A  bill  filed  to  quiet  title 
30:  Torrent  v.  Hamilton,  95  Mich,  of  lands  and  at  the  same  time  to  re- 
159;  Kelly  v.  Boettcher,  29  C.  C.  App.  form  a  deed  thereto  is  not  multitari- 
14,  85  Fed.  55;  Curran  v.  Campion,  ous;  the  reforming  of  the  deed  is 
29  C.  C.  App.  26,  85  Fed.  67;  Halsey  held  to  be  germane  to  the  settlement 
V.  Goddard  (U.  S.  C.  C,  1898),  86  Fed.  of  the  title.  Reddick  v.  Long.  124 
25;  Cutter  v.  Iowa  Water  Co.  (U.  S.  Ala.  260.  27  S.  402;  Whiteliead  v. 
C.  C,  1899),  96  Fed.  777.  A  bill  pray-  Sweet,  126  Cal.  67.  58  Pac.  376;  Mock 
ing  for  partition  of  real  estate  held  v.  City  of  Santa  Rosa,  126  Cal.  330, 
by"devisees,  and  at  the  same  time  for  58  Pac.  826.  A  bill  filed  to  enforce 
distribution  of  personal  estate  in  the  two  series  of  bonds  owned  by  corn- 
hands  of  the  executor,  is  multifarious,  plainant  and  issued  by  the  same  city 
Aylesworth  V.  Crocker,  21  R.  I.  436,  tocover  the  cost  of  the  same  improve- 
44  Atl.  308.  Where  a  bill  claims  an  ment,  the  only  difference  being  the 
accounting  by  an  assignee,  and  there  payment  of  one  series  is  provided 
are  several  other  rights  claimed,  but  for  by  a  general  tax,  and  the  other 
none  of  a  different  nature,  the  bill  by  special  assessment,  was  held  not 
was  held  to  be  not  multilarious.  to  be  multifarious.  Burliuiiton  Sav. 
Farrar  v.  Powell,  75  Vt.  747,  44  Atl.  Bank  v.  City  of  Clinton  (Iowa),  106 
344.     And  see  Dillard  v.  Dillar.l.  97     Fed.  269. 

10 


146  DEFENSES    BY   DEMLltKEK.  [§   115. 

dififerent  decree  to  settle  the  interests  of  each,  all  this  appear- 
ing upon  the  face  of  the  bill,  would  undoubtedly  render  it  mul- 
tifarious and  subject  to  a  demurrer  because  of  misjoinder  of 
complainants;  if,  however,  the  complainants  thus  joined  in  a 
bill  seek  relief  involving  the  same  questions,  requiring  the  same 
evidence  and  leading  to  the  same  decree,  the  bill  would  not  be 
subject  to  this  objection.* 

Where  various  owners  and  tenants  of  separate  properties 
located  in  the  vicinity  of  a  mill  joined  in  a  bill  of  complaint 
to  restrain  the  operation  of  the  mill  in  the  night  time,  all  the 
parties  claiming  relief  under  the  same  state  of  facts  and  the 
remedy  sought  being  identical,  the  fact  that  each  party  could 
have  filed  a  separate  bill  and  made  a  complete  case  was  held 
not  sufficient  to  show  that  there  was  a  misjoinder  of  parties 
complainant.- 

The  object  of  the  court  of  equity  to  do  complete  justice  is 
always  to  be  emphasized;  and  so  where,  because  of  the  mis- 
joinder or  non-joinder  of  parties,  whether  complainants  or  de- 
fendants, the  court  cannot  make  a  decree  that  will  settle  the 
rights  of  all  the  parties,  so  that  the  performance  of  the  decree 
of  the  court  in  the  particular  case  will  be  entirely  safe  to  those 
who  are  compelled  to  obey  it,  and  prevent  future  litigation; 
this  being  apparent  upon  the  face  of  the  bill  will  render  it  sub- 
ject to  demurrer.'  But  it  has  been  held  that  a  bill  cannot  be 
held  defective  on  demurrer  for  these  reasons:  where  it  does 
not  appear  upon  the  face  of  it  that  the  parties  that  are  not 
joined  are  necessary  to  the  determination  of  the  rights  of  the 
complainant,  or  that  there  are  other  persons  whose  interests 
would  be  injuriously  affected  by  the  granting  of  the  relief 
souo-ht.*     "  If  the  misjoinder  is  of  parties  as  plaintiffs,  all  the 

1  Home  Ins.  Co.  v.  Virginia,  etc.  terests.  Lonsdale  Co.  v.  Woonsocket. 
Co.,  109  Fed.  681;  Bradley  v.  Bradley,  21  R  L  498,  44  Atl.  929;  Proprietors 
35  N.  Y.  Sup.  514.  of  Mills,  etc.  v,  Braintree,  etc.  Co., 

2  Whipple  V.  Guile,  22  R  L  576,  48  149  Mass.  478,  21  N.  E.  761;  Sullivan 
Atl.  935.  Persons  having  a  common  v,  Phillips,  110  Ind.  320,  11  N.  E.  300. 
interest  in  preventing  the  diversion  3 1  Daniell,  Ch.  PI.  &  Pr.  558,  note 
of  the  water  of  a  stream  from  their  7 ;  Story,  Eq.  PI.  543. 

mill   privileges   were   permitted    to  *Farson  v.  Sioux  City  (U.  S.  C.  C, 

join  in  a  bill  for  an  injunction,  al-  1901),  106  Fed.  278.     In  Shingleur  v. 

though  they  claimed  under  distinct  Swift.  110  Ga.  891,  36  S.  E.  222,  it  was 

titles  and  possessed  independent  in-  held  that  a  bill  alleging  separate  and 


147 

§§  116,  IIT.]  DEFENSES   BY.   DEMURRER. 

defendants  may  demur;  if  the  misjoinder  is  of  parties  as  de- 
fendants, those  only  can  demur  who  are  improperly  joined. 
This  rule  appears  to  be  general.  ^ 
§116    (b)  Demurrer  because  of  the  incapacity  ot  parties. 

Where  upon  the  face  of  the  bill  it  appears  that  the  complain- 
ant has  not  the  legal  capacity  to  sue -that  he  is  an  infant,  a 
lunatic,  or  non  cow^pos  mentis,  or  laboring  under  other  legal 
disability,— the  bill  would  be  subject  to  demurrer,  because  the 
decree  in  such  case  would  not  settle  the  controversy  and  other 
litio-ation  might  ensue.  As,  for  example,  where  a  foreign  ad- 
ministrator or  executor  should  bring  suit,  not  having  been 
appointed  within  the  jurisdiction  to  represent  the  estate,  or 
where  a  voluntary  association  brings  suit  in  an  assumed  name, 
not  being  legally  incorporated,  the  bill  would  be  subject  to  a 

demurrer,^ 

Fourth. 

§  117.  For  detects  in  other  allegations  or  want  of  material 
allegations.— It  would  be  very  difficult  to  enumerate,  by  way 
of  example  or  otherwise,  the  defective  allegations  or  cases  for 
want  of  material  allegations  which  would  subject  the  bill  to  a 

distinct  causes  of  action  against  dif-  "Thedefect  of  ihetitle  of  the  plaint. 
ferent  defendants  was   demurrable  iff  to  the  character  m  which  he  sues: 
because    of    misjoinder  of    parties,  It  has   been   sometimes   considered 
there  being  no  allegations  showing  that  this  objection  is  the  proper  sub- 
joint  liability,  the  charges  of  fraud  ject  of  a  plea,  and  not  of  a  demurrer, 
being    general,  without    any   state-  But  there  seems  no  ground  to  sustain 
ment  of  fact  on  which  said  charges  the  proposition,  where  the  objection 
were  based.     But  in  Baily  v.  Tilling-  positively  appears  (which  can  rarely 
hast    40  C    C.  A.  93,  99  Fed.  801,  it  be  the  case)  upon  the  face  of  the  bill, 
was' held  that  it  was  not  essential  Thus,  for  example,  if  it  should  appear 
that  there  should  be  a  community  upon  the  face  of  the  bill  that  the 
of  interests  between  the  defendants  plaintiff   sued    as   administrator  in 
in  order  to  maintain  a  suit  in  equity  virtue  of  the  grant  of  administration 
against  them;  if  there  was  a  com-  in  a  foreign  country,  the  objection 
raon   qnestion  of  law  arising  upon  might  be  taken  by  demurrer;  for  it 
similar     facts     involved     between  is  clear  that  the  plaintiff    has  no 
plaintiffs    and     defendants,    equity  right,  under  that  administration,  to 
would     take     jurisdiction    on    the  sue  in  our  courts."    Story,  Eq.   Fl., 
ground  of  preventing  a  multiplicity  sec.  496;  Coop.  Eq.  PL  164;  Mitf.  Eq. 
Qf  g^i j.g  PI.,  by  Jeremy,  155 ;  Wiles  v.  Trustees. 

1  Story  Eq  PI.,  sec.  544;  Sweet  v.  etc.,  63  Ind.  206:  German  Reformed 
Converse,  88  Mich.  1;  Whitbeck  v.  Church  v.  Von  Puechelstein,  27  N.  J. 
Edgar,  2  Barb.  Ch.  106.  Eq.  30. 

2  Ante,  §§  53,  54,  55  and  cases  cited. 


148  DEFEN5.E.S    BY   DEMURRER.  [§  117. 

genertil  demurrer.  The  analysis  already  given  and  usually 
adopted  by  writers  upon  this  subject  will  generally  compass 
the  causes  for  demurrer  under  this  head. 

(a)  Want  of  interest  in  complainant.  A  want  of  interest  in  the 
complainant  who  commences  the  suit  would  clearly  show  that 
he  has  no  right,  legally  or  equitably,  to  recover  in  the  suit 
commenced  by  the  filing  of  his  bill.  One  of  the  requisites  of 
a  bill  of  complaint,  as  we  have  seen,  is  that  the  complainant 
must  show  an  interest  in  the  subject-matter  and  the  relief 
sou'»-ht,  in  himself,  for  if  he  had  no  interest  the  court  could 
make  no  decree.' 

(b)  That  defendant  is  not  answerahle  to  complainant.  If  the 
defendant  is  not  answerable  to  the  complainant,  certainly  he 
should  not  be  subjected  to  answer  the  complainant's  bill,  and 
this  appearing  upon  the  face  of  the  bill  would  sustain  a  de- 
murrer.^ 

(c)  Want  of  interest  in  defendant.  And  so  if  the  case  made 
shows  no  interest  in  the  defendant,  the  court  could  not  be  called 
upon  to  grant  the  relief  prayed  for  in  the  bill,  for  there  would 
be  no  liability  of  the  defendant  shown,  and  for  this  reason  the 
bill  would  be  subject  to  demurrer. 

(d)  That  complainant  is  not  entitled  to  the  relief  praijed  for. 
The  bill  must  show  that  the  complainant  is  entitled  to  the 
relief  he  seeks,  otherwise  his  bill  will  be  clearly  devoid  of 
equity  and  demurrable  for  that  reason,  for  as  matter  of  law 
the  complainant  would  not  be  entitled  to  a  decree.* 

(e)  That  the  suhject-matter  is  not  of  sufficient  value.  In  most 
of  the  states  it  is  required  by  statute  that  a  court  of  equity  will 
not  assume  jurisdiction  of  a  case  where  there  is  less  than  one 
hundred  dollars  involved,  and  if  the  amount  is  small  and  un- 
important, or  frivolous,  would  consider  it  beneath  its  dignity 
to  hear,  try  and  determine  the  case  made  by  the  bill. 

(f)  That  the  whole  controversy  is  not  involved  in  the  suit. 
As  has  been  often  repeated,  equity  delights  in  settling  the 
whole  controversy  between  the  parties;  this  is  one  of  the 
reasons  which  gives  to  the  court  favor  and  fixes  its  character 

1  Ante,  %  51 ;  Smith  v.  Brittenham,  '  Greenley  v.  Hovey,  115  Mich.  504; 
109  111.  540.  Burk  v.  Machine,  etc  Co.,  98  Mich. 

2^nfe,  §56.  614. 


R  117.]  DEFENSES   BY   DEMURRER.  149 

as  a  court  of  equity,  and  so  it  has  ever  been  held  that  the 
complainant  will  not  be  allowed  to  split  his  cause  of  action. 

In  Newland  v.  Rogers^  the  court  say:  "The  court  of  chan- 
cery abhors  a  useless  multiplication  of  suits  between  the  same 
parties,  and  endeavors  to  prevent  it  as  far  as  practicable.    For 
this  reason  the  court  will  not  allow  separate  bills  to  be  filed 
for  different   parts  of  the  same  account  between  the  same 
parties;  although  the  account  relates  to  transactions   which 
are  not  necessarily  connected  with  each  other.     Therefore,  to 
sustain  the  objection  that  several  distinct  matters  and  causes 
of  complaint  between  the  same  parties  are  improperly  joined 
in  the  same  bill,  such  matters  must  be  of  such  different  natures, 
or  the  forms  of  proceeding  in  relation  to  such  several  matters 
must  be  so  different,  that  it  would  be  improper,  or  very  incon- 
venient, to  litigate  the  same  in  one  suit.    For  there  is  no  such 
general  principle  in  the  court  of  chancery  that  distinct  mat- 
ters between  the  same  parties,  and  who  sue  or  are  sued  in 
the  same  right  or  capacity,  cannot  properly  be  united  in  the 
same  bill.     On  the  contrary,  there  are  several  cases  in  which 
it  has  been  held  that  matters  of  the  same  nature,  and  between 
the  same  parties,  although  arising  out  of  distinct  transactions, 
may  be  joined  in  the  same  suit." 

(g)  That  the  case  made  is  barred  hy  the  statute  of  limitations 
or  statute  of  frauds.  This  is  peculiarly  applicable  to  that  class 
of  cases  of  which  equity  assumes  concurrent  jurisdiction,  for 
in  such  case  the  maxim  that  "equity  follows  the  law  "  is  espe- 
cially applicable.  The  court  of  equity  will  not  place  upon  the 
defendant  a  greater  burden  because  the  suit  was  brought  in 
equity  rather  than  in  a  court  of  law.  And  so  in  that  class  of 
cases  where  the  statute  of  limitations  or  the  statute  of  frauds 
would  be  a  complete  defense  had  the  case  been  brought  in  the 
law  court,  the  defendant  may  make  the  defense  with  equal 
benefit  to  him  if  the  case  is  brought  in  ecjuity;  but  laches,  un- 
warrantable delay,  or  negligence  in  the  bringing  of  the  suit, 
even  if  the  case  is  one  over  which  the  equity  court  has  exclu- 
sive jurisdiction,  would  be  a  defense;  but  to  what  extent  and 
under  what  circumstances  this  may  be  invoked  as  a  defense  is 
a  question  resting  somewhat  in  the  discretion  of  the  court,  and 


1 3  Barb.  Ch.  435. 


150  DEFENSES    BY    DEMrKHHR.  [§  117. 

can  scarcely  be  said  to  be  sufficiently  certain  to  render  the 
bill  of  complaint  subject  to  demurrer.  Wliere  the  case  made 
by  the  bill  is  based  upon  an  agreement  which  the  statute  of 
frauds  requires  to  be  in  writing,  but  which  appears  from  the 
face  of  the  bill  to  be  a  parol  agreement  only,  and  no  sufficient 
grounds  are  alleged  to  take  it  out  of  the  statute  of  frauds,  the 
bill  is  subject  to  a  demurrer;  the  demurrer  admitting  the  ex- 
istence of  the  agreement,  but  insisting  that,  because  of  the 
statute  of  frauds,  it  cannot  be  enforced  and  the  relief  granted 
that  is  prayed  for  in  the  bill.  In  Somei'hy  v.  Buntin^  the  court 
held  that  a  demurrer  would  lie  where  upon  the  face  of  the  bill 
it  appeared  that  the  contract  which  the  complainant  sought  to 
have  enforced  was  not  to  be  performed  within  one  year  and 
was  oral. 

The  question  was  somewhat  considered  and  discussed  by 
Mr.  Justice  Grier  in  Badge)-  v.  Badger?  The  court  say :  "  Xow, 
the  principles  upon  which  courts  of  equity  act  in  such  cases 
are  established  by  cases  and  authorities  too  numerous  for  ref- 
erence. The  following  abstract,  quoted  in  the  words  used  in 
various  decisions,  will  suffice  for  the  purposes  of  this  decision: 
"  Courts  of  equity,  in  cases  of  concurrent  jurisdiction,  con- 
sider themselves  bound  by  the  statutes  of  limitation  which 
<'-overn  courts  of  law  in  like  cases,  and  this  rather  in  obedience 
to  the  statutes  than  by  analogy.  In  many  other  cases  they 
act  upon  the  analogy  of  the  like  limitation  at  law.  But 
there  is  a  defense  peculiar  to  courts  of  equity  founded  on 
lapse  of  time  and  the  staleness  of  the  claim,  where  no  statute 
of  limitation  governs  the  case.     In  such  cases,  courts  of  equity 

1 118  Mass.  279.  14  N.  E.  741 ;  Bird's  Adm'r  v.  Inslee's 

2  2  Wall.  (U.  S.)  87,94;  Godden  v.  Ex'rs,   23   N.    J.    Eq.  363;    Olden    v. 

Kiratnell,  99  U.  S.  202,  210;  Wood  v.  Hubbard,  34  N.  J.  Eq.  85:  M'Dowl  v. 

Carpenter,  101  U.  S.  135;  New  Eng-  Charles,   6  John.    Ch.    132.     But    in 

land  Ry.  Co.  v.  Hyde,  41  C.  C.  A.  404,  Town  of  Mt.  Morris  v.  King,  28  N.  Y. 

408,  101  Fed.  397,  401;  Landsdale  v.  S.  281,  77  Hun  (N.  Y.),  18,  the  court 

Smith,   106  U.  S.  391;  Thompson  v.  held    that   the  mere   fact  that  the 

Parker,   68    Ala.    387;    Faulkner    v.  plaintiff's  claim  appeared  by  the  bill 

Thompson.  14  Ark.  479;  Caldwell  v.  to  be  stale  would  not  be  sufiBcient  to 

Montgomery,   8  Ga.   106;  Coryell  v.  sustain    a    demurrer,   but   that  the 

Klchra,  157  111.  462,  41  N.  E.  864:  Ker-  question  must  be  determined  on  trial 

foot  V.  Billings,  160  111.  563,  48  N.  E.  of   the    issue  of  fact.      Sprague   v. 

804;  Meyer  v.   Saul,  82  Md.    459,  33  Rhodes,  4  R.  L  301. 
Atl.  539;  Fogg  v.  Price,  145  Mass.  513, 


§  118.1  DEFENSES   BY   DEMURRER.  151 

act  upon  thoir  OAvn  inherent  doctrine  of  discouraging,  for  the 
peace  of  society,  antiquated  demands,  refuse  to  interfere  where 
there  has  been  gross  laches  in  prosecuting  the  claim,  or  long 
acquiescence  in  the  assertion  of  adverse  rights.  Long  acqui- 
escence and  laches  by  parties  out  of  possession  are  productive 
of  much  hardship  and  injustice  to  others,  and  cannot  be  ex- 
cused but  by  showing  some  actual  hindrance  or  impediment, 
caused  by  the  fraud  or  concealment  of  the  parties  in  possession, 
which  will  appeal  to  the  conscience  of  the  chancellor. 

In  Ahrend  v.  Odiorne  ^  the  bill  filed  was  for  specific  perform- 
ance of  an  oral  contract  to  convey  lands.  The  court  say: 
"  But  if  that  agreement  was  oral  it  was  within  the  statute  of 
frauds,  and  could  not  be  enforced  either  at  law  or  in  equity. 
The  allegation  relating  to  it  —  which  is  merely  that  the  de- 
fendants on  a  certain  day,  and  repeatedly  since,  notified  the 
plaintiff  that  they  would,  if  he  requested  it,  reconvey  the  land 
to  him — clearly  implies  that  the  agreement  was  oral;  and 
this  fact,  thus  appearing  upon  the  face  of  the  bill,  may  be 
taken  advantage  of  by  demurrer." 

(h)  That  there  is  another  suit  pending  for  the  same  suhject- 
matter.  If  it  appears  from  the  allegations  of  the  bill  that 
there  is  another  suit  pending  for  the  same  subject-matter, 
either  in  the  same  or  some  other  court,  and  substantially  be- 
tween the  same  parties,  it  will  be  good  ground  for  demurrer. 
It  has  been  held  that  it  need  not  appear  that  the  suit  be  be- 
tween the  same  identical  parties,  if  it  is  of  the  same  interest 
and  traceable  to  the  same  parties,  and  the  pending  suit  would 
fully  settle  the  controversy  between  the  litigants;  that  is  to 
say,  if  it  appears  upon  the  face  of  the  bill  that  the  plaintiff 
would  obtain  the  same  relief  in  the  pending  suit  that  he  seeks 
to  obtam  in  the  bill  filed  and  demurred  to.'^ 

§  118.  The  deuHirrer  may  be  to  the  discovery  sought  as 
well  as  to  the  relief  prayed  for. —  Thus  far  we  have  discussed 
the  demurrer  as  applied  to  the  special  relief  prayed  for  in  the 

1 118  Mass.  261,  268;  Glass  v.  Hul-  land,  11  N.  J.  Eq.  370;  Cloud  v.  Greas- 

bert,  102  Mass.  21;  Walker  v.  Locke,  ley,  125  111.  313, 17  N.  E.  826;  Eveland 

5  Gush.  (Mass.)  90;  Slack  v.   Black,  v.  Stephenson,  45  Mich.  394;  Clifford 

109  Mass.  496;  Farnham  V.  Clements,  v.  Heald,    141   Mass.  322;  Harper  v. 

51   Me.    426;  Randall   v.    Howard,  2  Campbell,  102  Ala.  342. 
Black  (U.  S.),  585;  Cozine  v.  Graham,         2  i  DanL  Ch.  PL  &  Pr.  561,  par.  11. 
2  Paige  Ch.  177;  Van  Dyne  v.  Vree- 


152  DEFENSES   BY   DEMURRER.  [§  119. 

bill  of  complaint  and  not  to  the  discovery  sought.  Th'''  bill  of 
complaint  may  be  filed  for  discovery  of  facts  alleged  to  be 
within  the  knowledge  of  the  defendant  as  well  as  for  special 
relief.  Later  statutes,  as  we  have  already  seen,  in  most  of  the 
states,  have  to  a  certain  extent  rendered  bills  purely  for  dis- 
covery unnecessary;  bills,  however,  may  be  filed  seeking  for 
discovery,  and  usually  the  ordinary  chancery  bill,  in  that  it 
seeks  for  an  answer  to  all  the  matters  alleged  and  charged  in 
the  bill,  is  a  bill  as  well  for  discovery  a-s  for  special  relief.  A 
general  demurrer  may  be  interposed  to  that  part  of  the  bill 
seeking  discovery,  or  to  that  part  seeking  special  relief,  or  to 
both.  The  reasons  for  granting  to  the  defendant  the  right  to 
demur  to  that  portion  of  the  bill  asking  for  discovery  are  ob- 
vious and  rest  upon  the  law  of  the  individual  rights  of  the 
defendant  as  well  rs  upon  upon  his  duty  to  protect  the  rights  of 
others  where  he  has  been  intrusted  with  such  rights  in  a  way 
that  a  duty  arises  to  protect  them;  as,  for  example,  where  to 
discover  the  facts  prayed  for  would  be  a  breach  of  professional 
confidence.  Then,  too,  the  discovery  sought  may  be  of  such  a 
nature  that  it  cannot  be  said  to  affect  the  case  made  by  the  bill. 

Story  has  classified  the  reasons  for  objections  by  demurrer 
to  the  particular  discoveries  sought  for  in  the  bill  as  follows: 
(1)  That  the  answer  may  subject  the  defendant  to  penal  con- 
sequences; (2)  that  it  is  immaterial  to  the  purposes  of  the  suit; 
(3)  that  it  would  involve  a  breach  of  some  confidence  which 
it  is  the  policy  of  the  law  to  preserve  inviolate;  (4)  that  the 
matter  which  is  sought  to  be  discovered  appertains  to  the 
title  of  the  defendant  and  not  to  tiiat  of  the  plaintiff.' 

Mr.  Daniell,  in  his  work  on  Equity  Pleading  and  Practice, 
has  substantially  the  same  classification.^ 

§  119.  Reasons  for  demurring  to  bill  praying  relief  appli- 
cable when  bill  is  for  discovery. —  Upon  an  examination  of 
the  reasons,  discussed  in  former  sections,  which  will  sustain  a 
demurrer  to  a  bill  praying  for  relief,  it  will  be  discovered  that 
they  are  applicable  as  well  to  bills  seeking  discovery,  for  these 
reasons  would  apply  to  cases  in  equity  generally;  as,  for  ex- 
ample, a  bill  which  does  not  allege  an  interest  in  the  complain- 
ant, even  though  the  prayer  of  the  bill  is  for  discovery,  would 
be  sul)ject  to  demurrer  for  the  reason  that  the  facts  asked  for 

1  Story,  Eq.  PI.,  sec.  547.  2  i  Danl.  Ch.  PL  &  Pr.  563. 


g  120.1  DEFENSES    BY   DEMURRER.  153 

are  immaterial;  and  there  would  be  no  legal  reason  for  re- 
quiring the  discovery  of  the  facts  prayed  for;  and  so  wherever 
there  are  valid  reasons  upon  the  face  of  the  bill  which  would 
render  it  subject  to  demurrer,  as  a  general  rule  the  demurrer 
would  be  sustained,  even  though  the  bill  was  one  for  discovery. 
§  120.  When  bill  for  relief  and  discovery,  defendant  may 
demur  to  the  relief,  or  to  the  discovery,  or  to  both.— The 
bill  filed  may  be  defective  so  far  as  it  relates  to  the  obtaining  of 
the  special  relief  prayed  for  and  be  subject  to  a  demurrer  for  that 
reason,  or,  it  may  be  that  it  is  not  subject  to  demurrer  because 
of  the  relief  sought,  but  because  of  the  discovery  prayed  for; 
as,  for  example,  where  it  appears  by  the  bill  that  if  the  defend- 
ant should  answer  the  interrogatories  contained  in  the  bill  he 
would  subject  himself  to  criminal  prosecution,  or  to  a  penalty 
or  forfeiture,  or  that  he  would  divulge  facts  that  were  given 
him  because  of  confidential  relations,  or  for  other  reasons  al- 
ready mentioned.     And  so  the  defendant  may  demur  to  the 
whole  bill,  both  as  to  the  relief  sought  and  the  discovery  prayed 
for,  or  he  may  demur  to  the  relief  or  to  the  discovery,  or  he 
may  answer  to  the  discovery  and  demur  to  the  relief,  or-  he 
may  answer  to  the  relief  and  demur  to  the  discovery. 

In  the  case  of  Brownell  v.  Curtis^  this  was  fully  and  clearly 
discussed  by  the  chancellor  in  the  following  language:  "  It  ap- 
pears to  be  settled  that,  upon  a  bill  for  discovery  and  relief, 
the  defendant  may  answer  and  make  the  discovery  sought  and 
demur  to  the  relief  only.  And  there  is  also  a  class  of  cases  in 
which  the  defendant  may  refuse  to  make  a  discovery  as  to 
particular  charges  contained  in  the  bill,  although  a  demurrer 

1 10  Paige  Ch.  (N.  Y.)  210,  213.  In  have  availed  himself  of  it  in  this 
Burpee  v.  Saiith,  Walk.  Ch.  (Mich.)  way,  should  have  demurred  to  the 
327,  it  was  held  that  if  the  defend-  discovery  only,  and  not  to  both  dis- 
ant  should  demur  to  both  discovery  covery  and  relief;  for  although  com- 
and  relief,  when  he  should  have  de-  plainant  may  not  be  entitled  to  a 
murred  only  to  discovery,  the  de-  discovery  of  the  whole  case  from 
murrer  would  be  overruled.  The  Smith,  yet,  he  will  be  entitled  to  re- 
court  say:  "  Another  ground  of  de-  lief  against  him,  if  he  can  make  out 
murrer  is,  that  the  bill  shows  the  his  case  by  other  evidence.  The  de- 
note was  given  to  compound  a  felony,  murrer  should  also  have  been  limited 
and  that  equity  will  not  compel  a  to  such  parts  of  the  bill  as  implicate 
defendant  to  discover  on  oath  a  fact,  Smith  in  the  supposed  crime."  Ed- 
which,  if  true,  will  subject  him  to  a  wards  v.  Hulbert,  Walk.  Ch.  (Mich.) 
criminal  prosecution.  This  objection  54. 
can  apply  to  Smith  only;  and  he,  to 


loi  DEFENSES   BY   DEMURRER.  [§  120. 

could  not  have  been  sustained  as  to  the  relief  which  the  com- 
plainant intends  to  found  upon  those  charges.  Those,  how- 
ever, are  cases  in  which  the  discover}'  asked  for  would  tend  to 
criminate  the  defendant,  or  subject  him  to  a  penalty  or  for- 
feiture, or  would  be  a  breach  of  confidence  which  some  prin- 
ciple of  public  policy  does  not  permit;  and  where  the  com- 
plainant may  be  entitled  to  the  relief  sought  upon  the  matters 
charo-ed  in  the  bill,  although  the  defendant  is  not  bound  to 
make  a  discovery  to  aid  in  establishing  the  facts."  And  so  it 
may  be  said  to  be  a  general  rule  that  a  demurrer  may  be  to 
the  whole  bill  or  to  a  part  of  the  bill;  but  where  a  demurrer  is 
only  to  a  part  of  the  bill  it  should  be  accompanied  by  an  an- 
swer or  a  plea  to  what  remains.  The  defendant  may  demur 
to  part,  plead  to  a  part  and  answer  to  the  residue,'  provided, 
always,  the  answer  and  the  demurrer,  if  both  are  invoked,  be 
not  inconsistent  with  each  other;  for  in  this  connection  it  must 
be  remembered  that  a  general  demurrer  admits  all  the  facts 
alleged  in  that  portion  of  the  bill  to  which  demurrer  is  filed, 
to  be  true,  and  to  traverse  these  facts  with  any  other  plea  or 
answer  at  the  same  time  would  be  inconsistent.- 

1  U.  S.  Eq.  Rule32;  In t  Lumbering  the  defendants  have  not,  in  this  in- 

Co.  V.  Maurer.  44  Fed.  618;  Danl.  Ch.  stance,  brought  themselves   withm 

PI.  &  Pr.  583,  584;  Story,  Eq.  PI.  442.  any  exception  to  this  rule.  See  Bank 

» In   Hoadley  v.    Smith.  36   Conn,  of  Utica  v.  Messereau,  7  Paige  Ch. 

371,  it  was  held  that  the  defendant  517.    If  the  discovery  called  for  is  of 

could  not  plead  to  the  merits  of  the  such   a  character  that   the  defend- 

case  and  at  the  same  time  demur  to  ants   are   not   bound  to  make  it  or 

the  sufficiency  of  the  bill     And  in  the  complainant  is  not  from  the  nat- 

Gray  v.  Regan,  23  Miss.  304,  the  gen-  ure  of   the  case  entitled  to  call  for 

eral   rule   was   stated  that  a   party  it.  the  defendants  should   have  de- 

cannot  demur  to  the  whole  bill  and  murred;  or,  if  the  discovery,  when 

at  the  same  time  answer  to  a  part  of  made,    will  be    entirely  immaterial 

it     Anderson  v.  Newman,  60  Miss,  or  unavailing  to  the  complainant  as 

532;  Souzer  v.  De  Meyer,  2  Paige  Ch.  evidence,  the  defendants  might  have 

(N.  Y.)  574     In  Waring  v.  Suydam,  referred  the   bill   for   impertinence. 

4  Edw.  Ch.  (N.  Y.)  426,  428,  it  is  said:  But  it  appears  to  me  that  it  is  not 

"  As  a  general  rule  the  defendants,  immaterial   if   true;   and   from   the 

having  submitted   to  answer    gen-  nature  and  character  of  the  business 

erally.  and  not  to  answer  a  part  or  which  has  given  rise  to  this  contro- 

parts  of  the  bill,  taking  care  to  cover  versy,  it  is  just  such  a  disclosure,  in 

other  parts  by  a  plea  or  demurrer,  all  its  particulars,  as  the  complain- 

are  bound  to  go  on  and  answer  fully  ant    is    entitled   to  have   made.      I 

every  material  allegation  of  the  bill  must,  therefore,    hold   the   master's 

and  all  the  interrogatories  founded  decision  to  be   correct   in  allowing 

on  the  allegations  and  charges.  And  the  six  exceptions  for  insufficiency." 


p    [21   ^  DEFENSES    BY   DEMURRER.  155 

§  121.  Tlie  form  of  the  general  demurrer.— The  general 
demurrer,  as  we  have  seen,  is  one  of  substance,  that  is  to  say, 
it  goes  to' the  substance  of  the  bill  and  is  to  the  efifect  that  the 
c;ise   made  by  the  complainant,  admitting  all   of   the    well 
pleaded  facts  of  his  bill  to  be  true,  contains  no  equities  upon 
which  the  decree  prayed  for  can  be  based.     The  old  English 
d.MTiurrer  was  quite  formal;  it  contained  the  title  of  the  court 
and  the  cause,  and  then  proceeded  with  the  title  of  the  de- 
murrer as  being  the  demurrer  of  the  defendant  to  the  bill  of 
complaint  of  the  complainant,  and  then  contained  a  protesta- 
tion that  it  did  not  confess  or  acknowledge,  in  manner  or 
form,  any  of  the  matters  or  things  contained  in  the  bill  to  be 
true,  but  demurs  thereto,  and  for  cause  of  demurrer  stated 
that'the  complainant  had  not  stated  in  his  bill  a  case  entitling 
him  in  a  court  of  equity  to  any  discovery  or  relief  as  to  the 
matters  set  forth  in  the  bill,  and  concluded  with   prayer  for 
judgment   whether   he    should    be   compelled   to   make   any 
answer  to  said  bill,  and  prayed  to  be  dismissed  with  reason- 
able costs  and  charges.^ 

The  strictly  formal  parts  of  the  demurrer,  however,  have* 
more  or  less  gradually  given  way  under  decisions  of  the  courts, 
holding  that  if  there  was  a  clear  and  lucid  statement  in  the 
body  o°f  the  demurrer  that  the  bill  did  not  contain  equities 
upok  which  the  decree  prayed  for  in  the  bill  could  be  founded 
it  would  be  sufficient,  but  because  grounds  upon  which  the  de- 

iThe  following  was  the  usual  form  of  demurrer  adopted: 
Circuit  Court  of  the  United  States,  }  j^  Equity. 
Eastern  District  of  Michigan.        j 

John  Jones,  Complainant,     ) 

V.  y  Demurrer. 

William  Smith,  Defendant.  ) 

The  demurrer  of  William  Smith  [or,  of  William  Smith,  an  infant  under 

the  aee  of  twenty-one  years,  by  A.  B..  of county,  his  guardian;  or,  of 

William  Smith,  an  idiot  or  lunatic,  by  A.  B..  of county,  his  guardianj 

to  the  bill  of  complaint  of  John  Jones,  the  complainant 

This  defendant  by  protestation,  not  confessing  or  acknowledging  all  ot 
any  of  the  matters  and  things  in  the  said  bill  of  complaint  to  be  true,  m 
such  manner  and  form  as  the  same  are  therein  set  forth  and  alleged,  de- 
murs to  the  said  bill,  and  for  cause  of  demurrer  shows  that  the  said  com- 
plainant hath  not  in  and  by  said  bill  made  or  stated  such  a  cause  as  doth,  or 
ought  to,  entitle  him  to  any  such  discovery  or  relief  as  is  thereby  sought 
and  prayed  for  from  or  against  this  defendant.  ^      .  ^.  •     u  ki^ 

Wherefore,  this  defendant  demands  the  judgment  of  this  honorable 
court  whether  he  shall  be  compelled  to  make  any  further  or  other  answer 
to  the  said  bill,  or  any  of  the  matters  and  things  therein  contained  and 
prays  to  be  hence  dismissed,  with  his  reasonable  costs  in  this  behalf  sus- 
tained. 


156  DEFENSES   BY   DEMURRER.  [§  121. 

fendant  demurred  to  the  bill  should  be  set  forth  in  the  de- 
murrer, it  was  difficult  at  all  times  to  understand  what  was 
really  necessary  to  be  set  out  in  the  body  of  the  demurrer 
until  by  statutes  and  rales  of  practice  adopted  in  the  different 
courts  that  question  was,  at  least  to  some  extent,  settled. 

A  very  clear  and  lucid  statement  upon  this  subject  is  given 
us  in  the  case  of  Essex  Paper  Co.  v.  Greacen  et  aU  In  this 
case  the  general  demurrer  was  in  substance  as  follows:  "That 
the  complainant  has  not  in  and  by  his  bill  made  or  stated  such 
a  case  as  entitles  it  to  any  discovery  from  the  defendants  or 
to  any  relief  against  them  or  either  of  them."  The  complain- 
ant moved  in  the  case  to  strike  out  the  demurrer,  because  it 
did  not  state  the  particular  ground  or  cause  on  which  it  was 
founded,  as  required  by  rule.  The  court  in  its  opinion  said: 
"  The  new  orders  in  chancery  of  England  contain  a  clause 
identical  in  purpose  with  our  rule.  Rule  two  of  order  twenty- 
eight  requires  that  a  demurrer  shall  state  the  specific  ground 
on  which  it  is  founded.  Our  rule  requires  that  the  particular 
ground  shall  be  stated.  So  that  it  is  manifest,  from  their  lan- 
*guage,  that  the  scope  and  design  of  both  are  the  same.  The 
meaninrr  of  the  English  rule  is  settled.  It  was  first  construed 
by  Mr.  Justice  Kay  at  chambers,  and  afterwards,  in  the  court 
of  appeals,  by  Sir  George  Jessel,  M.  R.,  and  Lord  Justice 
J>aggallay  and  Lindley  in  Bidder  v.  McLean,  L.  R.  (20  Ch. 
Div.)  .512.  There,  as  here,  a  general  demurrer  had  been  filed, 
without  stating  other  cause  than  want  of  equity;  and  there, 
as  here,  the  complainant  applied  to  have  the  demurrer  struck 
out  because  it  did  not  specify  the  ground  on  which  it  was 
founded.  But  the  court  held  that  an  averment  of  want  of 
equity,  in  the  usual  language  of  a  general  demurrer,  will  con- 
stitute a  sufficient  specification  of  the  ground  of  demurrer, 
under  the  rule,  in  a  case  where  it  appears  to  the  court,  on  in- 
specting the  complainant's  bill,  that  his  right  to  relief,  assum- 
ing all  his  facts  to  be  true,  is  doubtful.  The  master  of  the 
rolls  said:  'This  is  a  case  in  which  I  must  say  that  the  plaint- 
iff had  some  reason  to  expect  a  general  demurrer  for  want  of 
equity.  I  do  not  mean  to  prejudge  the  question  whether  the 
demurrer  will  succeed,  but  the  equity  is  not  obvious  at  first 

» 45  N.  J.  Eq.  504,  19  Atl.  466. 


R  121.]  DEFENSES   BY  DEMURRER.  157 

sioht.     I  have  not  heard  a  suggestion  in  what  better  form  the 
demurrer  could  have  been  put  in  such  a  case  as  the  present. 
It  is  urged  that,  if  we  hold  this  demurrer  good  in  form,  the 
directions  in  order  28,  rule  2,  will  be  made  nugatory;  but  that 
is  not  so.     I  do  not  think  that  it  was  intended  to  make  it  im- 
possible to  demur  in  a  case  where  the  statement  of  claim  is  so 
framed  that  the  only  way  of  meeting  it  is  by  the  simple  alle 
gation  that  it  shows  no  cause  of  action.    In  many  cases  a  gen- 
eral demurrer  like  this  would  be  improper;  but  I  think  it  is 
not  so  in  the  present  case.'     And  Mr.  Justice  Lindley  said,  in 
substance,  that  the  specification  of  the  ground  of  demurrer  con  . 
tained  in  a  general  demurrer  would  not,  as  a  general  rule,  be 
sufficient;  but  whether  it  will  be  sufficient  or  not,  in  any  par- 
ticular case,  must  depend  entirely  upon  the  form  in  which  the 
plaintiff  has  stated  his  claim.     The  English  rule,  as  enforced 
in   practice,  may  be  correctly  stated  as  follows:  Where  the 
court   finds,    on   looking  at  the  complainant's  bill,  that  his 
right  to  relief  is  doubtful  or  uncertain,  or,  in  the  words  of  Sir 
George  Jessel,  that  his  equity  is  not  obvious  at  first  sight, 
there  a  simple  statement  of  want  of  equity  will,  under  the 
rule,  constitute  a  sufficient  specification  of  the  ground  of  the 
demurrer;  but  where  the  defect  or  infirmity  on  which  the  de- 
murrer is  founded  is  obscure  or  latent,  to  such  an  extent  that 
the  court  cannot,  on  inspecting  the  complainant's  bill,  readily 
discern    it,  there   the   rule    requires  the  demurrant  to  point 
out,  by  a  plain  statement,  the  specific  ground  on  which  his  de- 
murrer is  founded.     This  construction  gives  full  effect  to  the 
fundamental    purpose  intended  to  be  accomplished    by   the 
adoption  of  the  rule,  which  was  to  secure  greater  fairness  and 
thoroughness  in  the  discussion  of  questions  arising  on  general 
demurrer  than  could  be  had  under  the  old  practice.    Under  the 
old  practice,  it  sometimes  happened  that,  although  a  general 
demurrer  was  well  founded  in  point  of  law,  yet  the  ground 
upon  which  it  rested  was  so  far  beyond  the  line  of  vision  of 
the  ordinary  practitioner  that  he  could  not  see  it  without  hav- 
ing it  pointed  out  to  him,  and  only  lawyers  of  very  extended 
experience,  or  unusual  acumen,  would  readily  discern  it.     A 
simple  allegation  of  want  of  equity  gave  the  ordinary  practi- 
tioner, in  such  a  case,  no  information  whatever  of  the  ground 
on  which  his  statement  of  his  client's  case  would  be  attacked 


lc>8  DEFENSES    BY    DEMl'RRER.  [§  121. 

The  demurrer  rather  emboldened  than  disturbed  him,  for,  not 
seeing  the  ground  of  the  demurrer,  he  supposed  none  existed, 
and  he  would  proceed  to  the  argument  of  the  demurrer  in 
ignorance  of  the  ground  on  which  it  rested,  and  generally 
without  preparation,  and  the  consequence  was  that  in  such 
cases  the  court  was  either  compelled  to  defer  the  case  for 
further  argument,  or  to  decide  it  upon  an  imperfect  argument. 
The  purpose  of  the  rule  was  to  cure  this  mischief,  by  making 
it  the  duty  of  a  demurrant,  when  he  filed  his  demurrer,  to 
make  such  a  disclosure  of  the  ground  of  his  demurrer  as  would 
render  it  probable,  when  his  demurrer  came  on  for  argument, 
that  all  the  questions  raised  by  it  would  be  fully,  fairly  and 
thoroughl}'  discussed."  It  may  therefore  be  said  that  where 
it  is  not  clearly  apparent  upon  the  face  of  the  bill  that  the 
right  to  the  relief  prayed  is  doubtful  or  uncertain,  so  that  the 
court  cannot  upon  inspection  readily  discern  it,  the  demurrant 
should  specifically  point  out  the  grounds  upon  which  it  is 
founded. 

In  Farwell  v.  Johnston  ^  the  court  say :  "  On  general  demur- 
rer such  allegations  of  matters  merely  going  to  make  up  a 
completed  consideration  are  good  enough,  although  it  would 
have  been  more  correct  pleading  if  they  had  been  set  out  more 
specifically." 

In  Kellogg  v.  Hamilton'^  the  court  say:  "The  terms  of  the 
demurrer  were  not  meant  to  suggest,  and  did  not  suggest,  the 
alleged  error,  and  the  attention  of  the  court  below  has  never 
been  drawn  to  it.  A  cause  of  demurrer  should  be  so  stated  as 
to  apprise  the  court  of  the  real  objection,  and  in  case  it  is  not, 

1  ;14  Mich.  342,  34a  title^l  to  equitable  relief  was   suffi- 

-  43  Mich.  269,  271 ;  Pratt  v.  Lewis,  cient  to  cause  the  objection  that  a 

39  Mich.  7,  10.  11;  Ideal  Clothing  Ca  complainant,    as    administrator    de 

V.  Hazle,  1-6  Mich.  262,  85  N.  W.  735;  bonis  non,  could  not  maintain  a  suit 

Glover  v.   Hargadine,  etc.  Co.  (Neb.,  to  recover  damages  for  failure  of  an 

1901),  87  N.  W.  170;  Sweet  v.  Con-  original  executor  to  foreclose  a  mort- 

verse.  88  Mich.  1.     In  Parker  v.  Ste-  gage:  holding   further   that  an  ex- 

vens,  61  N.  J.   Ch,  163,  47  Atl.  573,  plicit    statement    is    required   only 

under  a  rule  of  court  providing  that  where  the  objection  is  obscure  and 

"every  demurrer,  whether  general  not  wheretheground  of  the  demurrer 

or  special,  shall  state  the  particular  is  obvious  upon  the  face  of  the  bill, 

grounds  upon  which  it  (is)  based,"  it  But  see  Bishop  v.  Waldron,  56  N.  J. 

was  held  that  a  demurrer  setting  out  484,  40   AtL  447;    affirmed,   43    Atl. 

that  the  complainant  was  not  en-  1098. 


§§  122,   123.]  DEFENSES    BY   DEMURRER.  159 

the  party  demurring  can  claim  nothing  under  it.  Any  other 
practice  would  be  an  obvious  aflEront  to  common  sense  as  well 
as  justice." 

No  doubt  the  rule  requiring  that  the  causes  for  demurrer 
shall  be  specifically  set  forth  is  more  or  less  induced  by  the 
rule  of  law  that  "  upon  a  demurrer  every  reasonable  presump- 
tion is  to  be  made  in  favor  of  rather  than  against  the  bill."^ 

§  122.  (2)  Special  demurrer.— A  special  demurrer  is  one 
based  upon  a  deficiency  in  the  bill  in  matter  of  form,  as  where 
there  is  an  omission  of  some  prescribed  formulation,  as  failure 
to  sign  by  counsel ;  -  or  verify  it  by  the  oath  of  the  complain- 
ant, or  by  some  one  in  his  behalf;'  or  where  it  is  necessary  to 
state  the  residence  of  the  parties  and  it  is  omitted. 

In  Win7iij)iseogee  Lake  Co.  v.  Young*  it  was  held  that  a  de- 
murrer would  lie  where  the  bill  alleged  that  plaintiff  was  a 
private  corporation  but  failed  to  allege  that  it  was  a  corpora- 
tion established  by  law  in  some  state  and  transacting  business 
as  such  in  same  place.  And  where  the  complainant  by  his  bill 
fails  to  off"er  to  do  equity,  the  rules  of  practice  requiring  it,  the 
bill  is  subject  to  demurrer.  The  most  frequent  cause  for  spe- 
cial demurrer  is  for  want  of  sufficient  certainty  in  framing  the 
bill,  but  any  defect  or  irregularity  in  the  framing  of  the  bill 
may  be  taken  advantage  of  by  special  demurrer.  From  the 
very  nature  of  the  special  demurrer  it  will  be  seen  that  the 
especial  defect  complained  of  must  be  set  out  in  the  demurrer.'* 

§  123.  Demurrer  ore  teuus. —  A  demurrer  ore  tenus  is  one 
where  the  causes  of  demurrer  are  assigned  orally.  For  example, 
it  is  allowed  where  the  defendant  has  put  in  a  general  demur- 
rer to  the  whole  bill  and  the  causes  assigned  upon  the  record 
have  been  overruled.     In  such  case  other  causes  of  demurrer 

1  Lincoln  v.Purcell,  2  Head  (Tenn.),  to  the  form  of  the   bill   cannot   be 
143.  taken  advantage  of  on  appeal  when 

2  Gove  V.  Pettis,  4  Sandf.  Ch,  (N.  Y.)  not  raised  in  the  court  below.     Mc- 
403;  Dwight   v.  Humphreys,   3  Mc-  Coy  v.  Boley,  21  Fla.  803. 

Lean  (U.  S.).  104  a  Atwill  v.  Ferrett,  2Blatchf.  (U.  S.) 

■•  Lansing  v.  Pine,  4  Paige,  639;  Mt.  39.     A  demurrer  for  want  of  parties 

Holly,  etc.  Co.  v.  Ferree,  17  N.  J.  Eq.  should   be  special,   and   the   proper 

117;  Findlay  v.  Hinde,  1  Pet.  (U.  S.)  parties   pointed  out     Hightower  v. 

241.  Mustain,    8    Gra.    506;    Laughton   v. 

*  40  N.  H.  420;  Ketcham  v,  Driggs,  Harden,  6»  Me.  208. 

6  McLean  (U.  S.),  13.     The  objection 


160 


DEFENSES   BY  DEMURRER. 


[§  124. 


"  ore  tenus"  will  be  allowed  at  the  argument.'  Tt  is  a  rule, 
however,  applicable  in  all  the  courts,  that  the  defendant  can 
only  assign  causes  orally  which  are  co-extensive  with  the  de- 
murrer he  has  put  upon  the  record. ^  And  so  the  defendant 
cannot  go  beyond  the  demurrer  which  he  has  already  filled; 
he  can  only  assign  other  causes  that  may  fairly  be  said  to  be 
within  the  subject  of  the  demurrer  he  has  served  and  filed.' 
If  the  defendant  filed  a  general  demurrer  for  want  of  equity, 
he  can  ore  tenus  assign  any  defect  in  substance  at  the  argu- 
ment, for  such  an  assignment  would  be  held  to  be  co-extensive 
with  the  demurrer  of  record.* 

§  124-.  Joint  demurrer. —  Several  defendants  may  interpose 
a  joint  demurrer  to  the  bill  of  complaint,  though  generally  it 
is  made  joint  and  several.  If  the  defenses  be  purely  joint 
defenses  and  the  several  defendants  "join  in  a  demurrer  for 
want  of  equity  solely,  neither  can  be  allowed  to  raise  a  ques- 
tion which  is  not  available  to  both."*     The  cause  of  demurrer 


1  In  Garlick  v.  Strong,  3  Paige  Ch. 
(N.  Y.)  440,  453,  the  chancellor  said: 
"The  demurrer  ore  tenus,  liowever, 
is  well  tak.n;  as  the  wife  cannot  be 
permitted  to  sue  except  by  her  next 
friend.  If  the  defendants  cannot 
sustain  the  demurrer  on  the  record, 
they  may  demur  ore  tenus;  but 
availing  themselves  of  that  right, 
they  must  pay  the  costs  of  the  de- 
murrer on  the  record.  This  was  so 
held  by  Lord  Eldon  in  the  case  of 
The  Attorney-General  v.  Brown,  1 
Swanst.  Rep.  (Eng.)  288." 

*  In  Burk  v.  Machine  &  Foundry 
Co.,  98  Mich.  614,  the  court  say:  "It 
is  well  settled  that  a  receiver  can- 
not be  sued  without  lea veof  the  court 
appointing  him.  Tremperv.  Brooks, 
40  Mich.  333;  Citizens'  Sav.  Bank  v. 
Circuit  Judge,  98  Mich.  173.  The 
bill,  in  the  present  case,  fails  to  state 
that  it  is  filed  by  leave  of  the  court; 
and  in  such  case,  the  defect  being 
apparent  on  the  face  of  the  bill,  the 
question  may  be  raised  by  demurrer. 
Jenn.  Ch.  Pr.  59.  At  the  hearing  of 
a  general   demurrer,  the  defendant 


may  orally  assign  any  cause  of  de- 
murrer which  is  co-extensive  with 
the  demurrer  upon  the  record.  Jen- 
nison,  Ch.  Pr.  61." 

'Pitts  v.  Short,  17  Ves.  Jr.,  215; 
Equitable  Life,  etc.  Soc.  v.  Patterson, 
1  Fed.  126. 

4  Barrett  v.  Doughty,  25  N.  J.  Eq. 
380;  Burk  v.  Muskegon  Machine  Co., 
98  Mich.  614.  But  after  answer  is 
filed  defendant  cannot  on  demurrer 
ore  tenus  object  that  the  plaintiff  has 
an  adequate  remedy  at  law.  Sherry 
V.  Smith,  72  Wis.  339.  39  N.  W.  556. 
In  Van  Orden  v.  Van  Orden,  59  N,  J. 
Ch.  545,  41  Atl.  671,  it  was  held  that 
a  demurrer  ore  tenus  for  want  of 
parties  might  be  assigned  at  the 
hearing  under  a  general  demurrer 
for  want  of  equity.  But  in  Hoff  v. 
Olson,  101  Wis.  118,  76  N.  W.  1121, 
the  court  held  that  an  objection  to  a 
bill  that  there  was  an  adequate 
remedy  was  waived  unless  taken  by 
demurrer  or  answer,  and  could  not 
be  raised  by  a  demurrer  ore  tenus  at 
the  trial. 

5  Sweet  V.  Converse,  88  Mich.  L 


g  125.]  DEFENSES   BY  DEMURREE.  161 

being  joint,  the  court  would  consider  it  as  such  and  one  judg- 
ment would  dispose  of  it,  but  if  upon  the  hearing  it  should  be 
found  that  the  demurrer  was  good  as  to  some  of  the  defend- 
ants and  bad  as  to  others,  the  court  of  equity  would  no  doubt 
make  a  decree  according  to  the  several  interests  of  the  de- 
fendants. 

In  Barstow  v.  Smith^  the  chancellor  said:  "A  demurrer 
may  be  good  as  to  one  defendant  and  bad  as  to  other  defend- 
ants. The  rule  that  it  cannot  be  good  in  part  and  bad  in  part, 
and  therefore  is  bad  as  to  the  whole,  applies  to  different  parts 
of  the  bill  covered  by  the  demurrer,  and  not  to  different  de- 
fendants who  have  united  in  the  demurrer,  as  to  one  or  more 
of  whom  it  may  be  good,  and  bad  as  to  others.  It  is  a  good 
ground  of  demurrer  to  the  whole  bill  that  one  of  complainants 
has  no  interest  in  the  suit,  and  has  improperly  joined  with 
others  in  filing  the  bill ;  but  there  is  no  such  rule  in  regard  to 
defendants."  The  demurrer  in  this  case  appears  to  have  been 
a  special  demurrer,  and  it  seems  generally  conceded  that  the 
rule  here  laid  down  with  reference  to  joint  demurrers  is  appli- 
cable only  where  the  defendants  demur  specially. 

§125.  When  may  tlie  demurrer  be  filed.— The  general 
rule  is  that  the  defendant  may  at  any  time  before  the  bill  is 
taken  as  confessed,  before  an  ovd^r  jpro  confesso  is  taken,  either 
demur,  plead  or  answer,  and  if  a  demurrer  is  interposed,  it 
will  take  the  same  course  as  though  filed  within  the  time  pre- 
scribed within  the  rules  of  practice  ;2  that  is  to  say,  the  plaint- 
iff, by  failing  to  take  advantage  of  the  rule  permitting  him  to 
enter  the  default  of  the  defendant  for  failure  to  demur,  plead 
or  answer,  will  be  considered  to  have  waived  the  privilege  for 
the  time  being;  and  if  the  defendant  answers  the  bill  taking 
issue  upon  the  allegations  of  fact,  he  will  not  be  permitted  to 
then  file  a  demurrer,  for  it  would  be,  as  we  have  seen,  incon- 

1  Walk.  Ch.  (Mich.)  397;  Dzialynski  be  bound  to  take  the  same  course  as 

V.  Bank,  2i  Fla.  347;  1  Barb.  Ch.  Pr.  though  filed  in  time.  And  in  Harvey 

108;  Wooden  v.  Morris,  3N.  J.  Eq.  65.  v.  Richmond  Ry.  Co.  (U.  S.  C.  C),  64 

■J  In  Oliver  v.  Decatur,  4  Cranch  Fed.  19,  it  was  held  that  vs^here  two 
(U.  S.  C.  C),  458,  it  was  held  that  the  demurrers  are  filed  which  are  virtu- 
defendaut  may  at  any  time  before  ally  the  same,  one  filed  within  the 
an  order  pro  confesso,  taking  the  time  and  one  later,  the  court  may  in 
bill  as  confessed,  plead,  answer  or  its  discretion  permit  the  second  de- 
demur,  and  the  complainant  would  murrer  to  stand. 
11 


162 


DEFENSES   BY  DEMURRER. 


[§  125. 


sistent  with  the  answer,  and  the  answer  having  already  beea 
filed,  it  would  be  necessary  for  him,  if  he  desired  to  demur,  to 
first  obtain  leave  of  the  court  to  withdraw  the  answer  and 
interpose  a  demurrer  in  its  stead. ^  The  regular  course  of 
pleading  would  forbid  a  proceeding  that  would  confound  the 
real  issues.  The  complainant  by  his  bill  alleges  the  facts  upon 
which  he  claims  his  right  to  the  relief  sought.  The  defendant 
may  defend  by  denying  the  legal  sufficiency  of  these  facts  by 
interposing  a  demurrer,  or  he  may  deny  the  facts,  or  confess 
and  avoid  them  by  an  answer,  or  in  some  cases  by  a  plea,  but 
these  are  distinct  grounds  of  defense  and  cannot  be  mingled 
and  confounded.2  The  time  for  interposing  a  demurrer,  or 
plea,  or  answer,  is  usually  regulated  by  statute  or  rule  of  court.^ 


Un  Hoadley   v. -Smith,    36  Conn, 
371,  the  court  say:    "The  respondent 
claims  that  he  has  a  rig;ht  to  inter- 
pose a  demurrer  in  a  suit  in  chan- 
cery in  any  stage  of  the  case,  before 
a  final  decree  shall  have  been  passed, 
and  to  stop  the  proceedings  till  the 
demurrer  shall  be  heard  and  deter- 
mined.    He  claims  the  right  to  do 
this  even   if  the  cause  is  on   trial 
upon  its  merits,  upon  an  answer  liled 
by  the  respondent,  bel'ore  the  court, 
or  a  committee  appointed  to  hear  and 
report  the  facts,  as  well  as  at  any 
other  time  during  the  pendency  of 
the  cause.    If  the  respondent  has  this 
right,  he   has  it  in   defiance  of  all 
order  in  the  proceedings  and   con- 
trary to  the  settled   practice  of  the 
state  from  time  immemorial.     This 
demurrer  was  filed  with  the  clerk, 
without  the  assent  of  the  court,  or 
consent  of  the  petitioners,  after  the 
respondent  had  filed  an  answer  to 
the  petition,  and  a  committee  had 
been  appointed  to  hear  and  report 
the  facts  of  the  case;  and  after  the 
committee  had  made  his  report,  and 
a  remonstrance  had  been  filed  to  the 
acceptance  of  the  same;   and  after 
the  petitioners  had   made   their  an- 
swers to  the  remonstrance,  and  the 
respondent  had  filed  his  replication 
to  the  answer;  and  after  the  parties 


had  been  fully  heard  upon  the  ques- 
tions arising  upon  the  remonstrance, 
and  while  the  court  was  considering 
what  judgment  should  be  rendered 
thereon.     No   motion   was  made  to 
change  or  alter  the  answer  that  had 
been  filed    to    the    petition;    or   to 
change  or  alter  the  remonstrance  to 
the  acceptance  of  the  report  of  the 
committee;  or  to  change  or  alter  the 
replication' to  the  ans%ver  to  the  re- 
monstrance; but  the  respondent  in- 
terposed   the    demurrer    while  the 
issues    joined    on     these    pleadings 
were  being  tried    by  the  court.     If 
the  court  was  bound  to  receive  it,  it 
must  be  on  the  ground  claimed  by 
the  respondent,  that  a  demurrer  is 
always  in  order  in  the  trial  of  causes, 
like  a  motion  to  adjourn   in  parlia- 
mentary proceedings.    But  we  think 
no  principle   is   better  settled  than 
that  a  party   cannot  plead   to  the 
merits  of  a  cause  and  demur  to  the 
sufficiency    of    the     declaration    or 
petition  at  the  same  time;  or  at  dif- 
ferent  times  so   that   both   will  be 
pending  at  the  same  time.     All  the 
books  upon  pleading  uniformly  de- 
clare  that    this    cannot    be    done." 
Newman  v.  Moody,  19  Fed.  858. 
2  Adams  v.  Way,  32  Conn.  160. 
3U.  S.   Eq.  Rule  18;  and  see  rules 
of  practice  in  the  several  states. 


§§  126,  127.]  DEFENSES   BY   DEMURRER.  163 

And  where  the  defendant,  after  the  time  to  demur,  plead  or 
answer  to  the  bill  of  complaint^  obtained  an  extension  of  time 
to  answer,  he  was  not  allowed  to  interpose  a  demurrer  without 
leave,  and  a  demurrer  filed  under  such  an  order  was  stricken 
from  the  files.  The  chancellor,  in  his  opinion,  said:  "It  is  a 
well  settled  rule  of  practice  in  the  English  court  of  chancery 
that  the  defendant  cannot  put  in  a  demurrer  without  a  special 
permission  of  the  court,  after  he  has  obtained  a  general  order 
for  further  time  to  answer;  and,  if  ho  does  file  such  demurrer, 
it  will  be  ordered  off  the  files  for  irregularity,  with  costs."  ^ 
And  the  rule  has  been  held  to  be  the  same  when  the  time  to 
answer  has  been  extended  by  stipulation  of  the  parties.^ 

§  126.  T3ie  extent  of  the  demurrer.— The  defendant,  as 
we  have  seen,  may  demur  to  a  part  of  the  bill,  plead  to  a  part 
and  answer  to  a  part,  but  when  the  demurrer  is  only  intended 
to  apply  to  a  part  of  the  bill,  that  part  should  be  especially 
noted  in  the  demurrer;  for  if  the  demurrer  be  to  the  whole  bill 
for  want  of  equity,  and  any  part  of  the  bill  be  found  sufficient 
to  support  the  object  of  the  bill,  the  demurrer  will  be  over- 
ruled.' But  where  there  is  a  demurrer  to  the  whole  bill  and 
to  each  of  the  several  parts  of  the  bill  specifically  set  out,  and 
some  of  the  parts  thus  specifically  demurred  to  are  not  suffi- 
cient to  authorize  the  relief  prayed  for,  the  court  may  sustain 
the  demurrer  as  to  these  parts  and  overrule  it  as  to  other  por- 
tions found  sufficient  and  order  the  defendant  to  answer  as  to 
the  portion  of  the  bill  found  sufficient." 

§127.  Demurrers  to  bills  not  original.— The  same  prin- 
ciples that  have  already  been  discussed  govern  demurrers  to 

1  Burrall  V.  Raineteaux,  2  Paige  Ch.  1898),  48  S.  W.  300;  Hall  v.  Calvert 
(N.  Y.)  331;  Cowman  v.  Lovett,  10  (Tenn.  Ch.  App.,  1897),  46  S.  W.  1120; 
Paige  (N.Y.),  559;  Lakens  V.  Fielden,  Durham  v.  Stephenson,  41  Fla.  112, 
11  Paige  (N.  Y.),  644.  31  S.  284;  Bliss  v.   Parks.  175  Mass. 

2  Bedeil  v.  Bedell,  2  Barb.  Ch.  (N.  Y.)  539, 56  N.  E.  566;  Berwind  v.  Canadian, 
100.  etc.  Ry.  Co.  (U.  .^.  C.  C,  1899),  98  Fed. 

3  A  general  demurrer  may  be  over-  158;  Larter  v.  Canfield,  59  N.  J.  Ch. 
ruled  if  found  not  to  be  good  as  to  461.  45  Atl.  616;  Lowry  v.  Stapp 
the  whole  bill.  Williams  v.  Hub-  (Tenn.  Ch.  App.,  1899),  53  S.  W.  194; 
bard,  Walk.  Ch.  (Mich.)  28;  Barks-  Moore  v.  Bank.  120  Ala.  89;  Women's, 
dale  v.  Davis,  114  Ala.  623,  22  S.  etc.  Order  v.  Haley,  86  III.  App.  330; 
17;  Trenton  Pass.  Ry.  Co.  v.  Wilson,  Eakin  v.  Hawkins,  48  W.  Va.  364,  37 
53  N.  J.  Eq.  577;  Overall  v.  Avant  S.  E.  622. 

(Tenn.  Ch.  App.,  1897),  46  S.  W.  1031;        *  Powder  Co.  v.  Powder  Works,  98 
McNutt  V.  Roberts  (Tenn.  Ch.  App.,     U.  S.  126;  Gay  v.  Skeen,  36  W.  Va.  582. 


164  DEFENSES   BY  DEMURRER.  [§  127. 

bills  not  original.  Whenever  it  appears  upon  the  face  of  the 
bill,  admitting  all  of  the  material  facts  alleged  to  be  true,  that 
the  relief  prayed  for  should  not  be  granted,  it  is  proper  to  in- 
terpose a  general  demurrer,  and  the  rules  as  to  defects  in  form 
are  the  same  as  apply  to  any  other  bill.  As,  for  example,  if 
the  bill  be  a  bill  for  revivor,  and  there  is  want  of  privity;  or 
the  parties  seeking  to  file  the  bill  have  no  legal  interest  in  the 
former  suit;  or  there  is  a  defect  in  the  form  of  the  bill,  a  de- 
murrer will  lie.^  Or  if  the  bill  be  a  supplemental  bill,  a  bill 
that  can  only  be  filed  for  the  purpose  of  exhibiting  to  the 
court  facts  supplemental  to  the  original  bill  which  have  arisen 
since  the  filing  of  the  bill;  facts  that  cannot  be  taken  advantage 
of  by  way  of  amendment  because  they  did  not  exist  at  the  time 
the  bill  was  filed;  if  it  should  appear  upon  the  face  of  the  bill 
that  the  facts  relied  upon  and  alleged  in  it  did  exist  prior  to 
the  filing  of  the  original  bill,  and  that  the  supplemental  bill 
was  simply  making  a  new  and  different  case  from  the  original 
bill,  it  would  be  subject  to  demurrer,  for  the  facts  should  be 
taken  advantage  of  by  way  of  amendment."^  A  demurrer, 
however,  to  a  cross-bill  is  governed  by  different  rules.  If  the 
cross-bill  is  filed  by  a  defendant  in  a  suit  against  the  plaintiff 
touching  the  same  matter  that  is  set  out  in  the  original  bill, 
it  has  been  held  that  it  is  not  demurrable  for  want  of  equity, 
for  it  is  in  substance  that  which  the  plaintiff  in  the  original 
bill  has  already  put  into  the  case  and  the  defendant  is  only 
availing  himself  of  the  matter  as  a  defense;  but  if  the  cross- 
bill goes  farther  than  this  and  seeks  relief,  it  must  be  equitable 
relief  based  upon  other  allegations  relating  to  the  same  sub- 
ject-matter of  the  original  bill,  or  is  rather  a  cross-bill  in  the 
nature  of  an  original  bill.    In  such  case  and  as  to  such  matters, 

1  Story,  Eq.  PL,  sec.  617;  Coop.  Eq.  the  original  bill  by  way  of  amend- 
Pl.  210;  Mitf.  Eq.  PI.,  by  Jeremy,  20',\  ment,    although    the    supplemental 

2  In  Dias  v.  Merle,  4  Paige  (N.  Y.),  bill  alleges  that  the  new  facts  were 
259.  the  court  said;  "Where  no  oc-  not  known  to  the  complainant  until 
ciirrence  has  taken  place  to  change  after  the  cause  was  at  issue  on  the 
the  rights  of  the  parties  subsequent  original  bill.  The  proper  course  for 
to  the  commencement  of  the  origi-  the  complainant,  where  the  proofs 
nal  suit,  the  complainant  cannot,  have  not  yet  been  taken  in  the  cause, 
after  the  cause  is  at  issue,  file  a  sup-  is  to  apply  to  the  court  for  leave  to 
piemen tal  bill  for  the  mere  purpose  withdraw  the  replication,  and  to 
of  putting  in  issue  new  facts,  which  amend  the  bill."  Colclough  v.  Evans, 
might   have   been   introduced    into  4  Sim.  Rep.  76. 


§  128.] 


DEFENSES   BY  DEMUERER.  1^5 


the  rules  governing  the  demurrer  would  obtain.  Such  a  cross- 
bill must  contain  allegations  which  will  support  the  further 
relief  prayed  for,  and  if  it  does  not,  it  will  be  open  to  a  de- 
murrer.i  It  is  a  rule  governing  cross-bills  that  they  must  be 
confined  to  the  matters  in  litigation  in  the  original  bill,  and 
where  they  go  beyond  this,  and  allege  other  and  distinct  mat- 
ters and  seek  relief  upon  such  new  and  distinct  allegations,  it 
is  said  that  it  is  no  longer  a  cross-bill  and  is  demurrable  for 
this  reason.  And  so,  if  a  bill  of  review  be  filed  contrary  to 
the  practice  of  the  court,  or  fail  to  set  up  such  matters  as  will 
give  the  court  jurisdiction,  it  would  be  subject  to  demurrer. 

§  128.  Bringing  the  demurrer  to  a  hearing.— The  de- 
murrer raises  an  issue  of  law  to  be  heard  and  determined  by 
the  court.     The  issue  thus  made  is  brought  on  for  hearing  ac- 
cording to  the  rules  and  practice  that  obtain  in  the  several 
courts Tas,  for  example,  in  some  of  the  states  the  practice  is 
that  it  must  be  noticed  for  hearing  a  certain  number  of  days 
before  the  first  day  of  the  term,  while  in  other  courts  it  is 
put  upon  the  calendar  and  will  be  taken  up  for  argument 
when  it  is  reached,  or  when  it  is  set  down  for  argument.     In 
the  United  States  court  it  is  governed  somewhat  by  a  rule  of 
the  court.     "  If  the  plaintiff  shall  not  reply  to  any  plea,  or  set 
down  any  plea  or  demurrer  for  argument  on  the  rule-day  when 
the  same  is  filed,  or  on  the  next  succeeding  rule-day,  he  shall 
be  deemed  to  admit  the  truth  and  sufficiency  thereof,  and  his 
bill  shall  be  dismissed  as  of  course,  unless  a  judge  of  the  court 
shall  allow  him  further  time  for  that  purpose."  ^     In  the  dif- 
ferent circuit  courts  of  the  United  States  it  is  regulated  by 
local  rules.    The  former  English  practice  required  the  plaintiff 
to  obtain  an  order  upon  a  petition  asking  the  court  to  set  the 
demurrer  for  hearing,  which  order  must  be  served  upon  the 
defendant's  solicitor  at  least  two  days  before  the  hearing.* 

iCoop.  Eq.   PI.  215;   Story,  Eq.  PI.  for  that  purpose.    Unless  specially  di- 

g30.  rected  by  an  order  of  the  lord  chan- 

2U.  S.  Eq.  Rule  38;  Gillette  v.  Do-  cellor  or  lords  justices,  the  demurrer 

heny  (U.  S.  C.  C),  65  Fed.  715;  Mera-  must  be  set  down  to  be  heard  before 

phis,  etc.  Ry.  Co.  v.  Owens,  60  Miss,  the  judge  to  whose  court  the  cause 

237^ '  is  attached.    If  the  cause  is  attached 

31  Danl.  Ch.  PI.  &  Pr.  594.     "The  to  the  court  of  one  of  the  vice-chan- 

party  wishing  to  set  down  a  demurrer  cellors,  this  order  is  obtained  on  a 

for  argument  must  obtain  an  order  petition  of  course,  to  the  lord  chan- 


266  DEFENSES   BY  DEMURRER.  [§§  129,  130. 

§  129.  The  lie.iiing  of  the  demurrer.— The  demurrer  hav- 
ing been  reguhirly  brought  on  for  hearing,  all  of  the  facts 
upon  which  the  judgment  of  the  court  at  the  hearing  can  be 
based  are  contained  in  the  bill  of  complaint  to  which  the  de- 
murrer is  interposed,  and  the  court  can  take  no  other  facts 
into  consideration;  the  argument  is  purely  an  argument  upon 
an  issue  of  law  based  upon  the  facts  alleged  in  the  bill.  If  the 
court  should  determine  that  the  demurrer  is  well  taken,  it  will 
order  a  decree  sustaining  the  demurrer;  if  the  court  should 
conclude  otherwise,  the  decree  will  be  that  the  demurrer  be 
overruled.  As  we  have  seen,  the  demurrer  may  be  to  a  part  of 
the  bill,  in  which  case  the  court  may  sustain  the  demurrer  and 
the  cause  will  remain  in  court  as  to  the  part  not  covered  by 
the  demurrer,  and  usually  the  bill  will  be  allowed  to  be 
amended  as  to  that  part  to  which  the  demurrer  is  sustained. 
If  the  demurrer  be  to  the  whole  bill  and  it  is  sustained,  the 
case  is  practically  concluded.  The  rules  and  practice  of  the 
chancery  court  as  to  amendments,  however,  are  very  liberal, 
and  where  the  case  is  one  where  the  plaintiff  might  amend  the 
bill  without  alleging  facts  inconsistent  with  the  allegations  in 
the  original  bill,  and  the  ends  of  justice  will  permit  it,  he  will 
generally  be  allowed  to  do  so.' 

§  130.  The  judgment  or  decree  upon  demurrer. —  The 
judgment  or  decree  upon  the  hearing  depends  somewhat  upon 
the  kind  of  demurrer  that  was  interposed  to  the  bill.  If  a  de- 
murrer to  the  whole  bill  be  sustained  at  the  hearing  for  want 
of  equit}'',  the  decree  is  a  final  decree  dismissing  the  bill  and 
may  be  appealed  from  if  the  complainant  so  elects;  but  if  the 
bill  is  of  such  a  nature  that  it  can  be  amended  so  as  to  cure 
the  defect,  the  court  will  generally  allow  it,  but  the  amend- 
ment must  be  consistent  with  the  allegations  in  the  original 
bill.  Formerly  an  amendment  was  not  allowed  where  a  gen- 
eral demurrer  was  sustained. 

In  the  case  of  Lyon  v.  Tallmadge  ^  the  demurrer  was  a  gen- 
eral demurrer  for  want  of  equity,  and  the  court  denied  the 

cellor,    being    left  at  the  order  of    by  the  order  of    course  clerk   the 
course  seat  in  the  registrars'  office,     same  day." 

and  is  dated  the  day  the  petition  is        i  Powder  Co.  v.  Powder  C5o.,  98  U. 
left;  and  the  demurrer  is  set  down    S.  126. 

2  1  John&  184. 


R  130.1  DEFENSES    BY   DEMURRER.  167 

complainant  leave  to  cam  end  the  bill.  The  court  say:  "The 
motion  for  leave  to  amend  the  bill  is  not  founded  upon  any 
specified  omission  or  imperfection.  The  demurrer  was  de- 
cided upon  the  merits,  and  on  the  ground  that  the  bill  con- 
tained no  equity.  A  general  leave  to  amend  would  be  the 
same  as  leave  to  make  a  new  bill,  and  I  think  the  indulgence 
of  amendments  is  not  to  be  carried  so  far.  If  the  bill  be  found 
defective  in  its  prayer  for  relief,  or  in  proper  parties,  or  in  the 
omission  or  mistake  of  some  fact  or  circumstance  connected 
with  the  substance  of  the  case,  but  not  forming  the  substance 
itself,  the  amendment  is  usually  granted.  But  the  substance 
of  the  bill  must  contain  ground  for  relief.  There  must  be 
equity  in  the  case,  when  fully  stated,  and  correctly  applied  to 
the  proper  parties,  sufficient  to  warrant  a  decree."  The  rigor 
of  this  rule,  however,  has  been  somewhat  relaxed;  in  the 
United  States  court  it  is  regulated  by  rule  of  court.  "If  upon 
the  hearing  any  demurrer  or  plea  shall  be  allowed,  the  defend- 
ant shall  be  entitled  to  his  costs,  but  the  court  may  in  its 
discretion,  upon  motion  of  the  plaintiff,  allow  him  to  amend 
his  bill  upon  such  terms  as  it  shall  deem   reasonable.'"     If 

1  "Strictly  speaking,  upon  a  demur-  general  demurrer  and  there  was  no 
rer  to  the  whole  bill  being  allowed,  interest  shown  in  the  wife,  but  in- 
the  bill  is  out  of  court,  and  no  subse-  terest  was  shown  to  be  in  the  hus- 
quent  proceeding  can  be  taken  in  band,  it  was  held  that  the  demurrer 
the  cause.  The  court  often,  how-  should  be  sustained  as  to  the  wife, 
ever,  on  hearing  the  demurrer,  gives  Crane  v.  Deming,  7  Conn.  387.  And 
leave  to  amend,  and  there  are  cases  in  Alfred  Richards  Brick  Co.  v.  At- 
in  which  it  has  afterwards  permitted  kinson,  16  App.  D.  C.  463,  where  a 
an  amendment  to  be  made;  and  it  demurrer  to  the  whole  bill  was  iu- 
seems  that,  even  after  a  bill  has  terposed  and  sustained,  it  was  held 
been  dismissed  by  order,  it  has  been  that  the  bill  was  out  of  court  and 
considered  in  the  discretion  of  the  could  not  be  regularly  amended, 
court  to  set  the  cause  on  foot  again."  but  if  justice  required  a  different 
1  Danl.  PI.  &  Pr.  597;  1  Barb.  Ch.  Pr.  course,  it  was  competent  for  the 
111;  U.  S.  Eq.  Rule  35;  National  court  to  allow  the  bill  to  be  amended. 
Bank  v.  Carpenter,  101  U.  S.  567.  In  And  where  the  demurrer  to  the 
Mcintosh  V.  Alexander,  16  Ala.  87,  it  bill  was  upon  several  grounds,  and 
was  held  to  be  a  general  rule  that  a  one  of  the  grounds  of  demurrer  was 
demurrer  for  multifariousness,  like  sustained,  it  was  held  that  such  a 
a  demurrer  for  misjoinder  at  law,  decree  sustained  the  whole  demurrer 
goes  to  the  whole  case,  and  if  such  and  put  the  case  out  of  court  unless 
a  demurrer  be  sustained,  the  bill  the  bill  was  amended.  Coleman  v. 
should  be  dismissed.  And  where  a  Butt  (Ala.,  1901),  30  S.  364.  In  Bos- 
husband  and  wife  both  joined  in  a  ton,  etc.  Ry.  Co.  v,  Parr  (U.  S.  C.  C, 


1G8  DEFENSES   BY   DEMURRER.  [§  130. 

the  demurrer  be  to  a  part  of  the  bill  and  sustained  upon  the 
hearing,  the  complainant  usually  amends  the  bill,  if  he  can 
do  so  and  preserve  the  purpose  and  object  of  it,  and  after 
such  an  amendment  the  cause  proceeds  as  though  no  de- 
murrer had  been  filed.  If  the  part  of  the  bill  to  which  the 
demurrer  was  sustained  be  of  such  importance  that  it  would  af- 
fect the  object  of  the  bill  and  materiall}^  impair  the  purpose 
for  which  it  was  filed,  for  the  purpose  of  appealing  the  cause, 
the  decree  sustaining  it  would  be  considered  to  be  a  final  de- 
cree. If  the  judgment  of  the  court  be  that  the  demurrer  be 
overruled,  the  defendant  will  be  allowed  to  answer  the  bill,  and 
would,  in  cases  where  discovery  is  sought,  be  required  to  answer. 
In  no  case  would  the  court  grant  a  decree  against  the  defend- 
ant upon  the  case  made  in  the  bill  upon  overruling  the  de- 
murrer, because  the  complainant  has  not  proven  his  case,  and 
it  is  necessary  that  he  should  prove  sufficient  allegations  in  the 
bill  to  entitle  him  to  the  relief  sought,  or  that  he  should  have 
an  order  jpro  confesso  on  default  of  defendant.  While  it  is 
true  that  the  demurrer  admits  the  material  facts  in  the  bill 
to  be  true,  it  is  only  an  admission  for  the  purposes  of  the  argu- 
ment of  the  demurrer  and  not  an  admission  that  can  be  other- 
wise used  in  the  case;  that  is  to  say,  it  may  be  said  that  the 
demurrer  stood  as  an  excuse  for  not  answering,  and  on  over- 
ruling the  demurrer  the  court  says  to  the  defendant,  your  ex- 
cuse for  not  answering  is  not  allowed,  and  you  must  plead  or 
answer  to  the  bill  or  your  default  for  not  doing  so  will  be  taken, 
and  the  bill  taken  as  confessed;^  but  should  the  defendant 
elect  to  rest  his  defense  upon  the  demurrer,  he  may  appeal 
to  a  higher  court,  and  for  this  purpose  the  decree  overruling 
the  demurrer  would  be  considered  the  final  decree.^     The  de- 

1899),  98  Fed.  483,  it  was  held  that  lingslea  v.  Manear,  47  W.  Va.  785,  ^5 

leave  to  amend  a  bill  after  a  demur-  S.  K  847,  it  was  held  that  on  over- 

rer  had  been  sustained  rests  in  the  ruling  a  demurrer  to  an  original  bill 

discretion  of  the  court  and  is  not  a  defendant  was  entitled  to  a  rule  to 

matter  of  right.     Fleece  v.  Russell,  answer  the  bill. 

13  III.  31;    De  Louis   v.   Meek,  2  G.        2  whiting  v.  Mayor,  etc.  of   New 

Greene  (Iowa),  55,  50  Am,  Dec.  491;  York,  37  N.  Y.  600.     The  court  say: 

Cullison  V.  Bossom,  1  Md.  Ch.  95.  "  In  this  case  the  appellants  had,  in 

1  Hays  V.  Hetherly,  36  W.  Va.  613,  the   court   below,  demurred  to  the 

15  S.  E.  223, 231;  Lambert  V.Lambert,  complaint.      The     demurrer    being 

53  Me.  544;  Jourolmpn  v.  Massengill,  overruled,  with  leave  to  answer,  they 

86  Tenn.  Ch.  81,  5  S.  W.  719.     In  Bil-  declined  to  answer,  submitted  to  the 


§  131.J 


DEFENSES   BY   DEMUKKEB. 


109 


fendant,  after  his  demurrer  has  been  overruled,  will  not  be 
permitted  to  file  another  demurrer  to  the  same  extent,  for  it 
would  be  but  a  rehearing  of  the  same  matter.^  If  the  de- 
murrer is  to  the  whole  bill  for  want  of  equity,  it  cannot  be 
sustained  if  the  bill  contains  sufficient  allegations  of  fact  to 
constitute  a  cause  of  action;  that  is  to  say,  such  a  demurrer 
cannot  be  good  in  part  and  bad  in  part,  and  if  the  demurrer 
should  be  to  several  parts  of  the  bill,  the  demurrer  would  be 
overruled  if  any  of  the  parts  to  which  the  demurrer  was  ad- 
dressed were  sufficient  to  entitle  complainant  to  relief.^ 

§131.  Demurrer  overruled  by  plea  or  answer.— A  de- 
murrer, as  we  have  seen,  admits  all  the  facts  that  are  well 
pleaded  in  the  bill  to  be  true;  it  would  therefore  follow  that 


judgment,  and,  on  the  affirmance  in 
the  general  term,  appealed  to  this 
court.  On  the  argument  here,  the 
appellants  urged  that,  if  the  judg- 
ment should  be  affirmed,  leave 
should  now  be  given  to  them  to  an- 
swer the  complaint.  The  court  are 
unanimous  in  holding  that,  where  a 
pleading  is  sustained,  the  demurrer 
bemg  overruled,  and  leave  is  given 
to  answer  the  pleading,  the  demur- 
rant is  put  to  his  election  to  answer 
over  or  submit  to  judgment;  and  if 
he  submit  to  judgment,  the  judg- 
ment is  final.  If  he  appeal  there- 
from to  this  court,  such  appeal  comes 
here  on  the  question  of  affirmance 
or  reversal  only;  and  no  leave  to  the 
demurrant  to  answer  or  plead  anew 
can  be  given." 

1 1  Dan  I.  Ch.  PL  &  Pr.  601.  "Where 
a  demurrer  is  overruled,  and  the 
plaintiff  amends  his  bill,  the  defend- 
ant is  not  precluded  from  appealing 
against  the  order  overi'uling  tlie  de- 
murrer; but  after  the  defendant  has 
served  the  plaintiff  with  notice  of 
the  appeal,  an  order  of  course  to 
amend  the  bill  is  irregular,  and  will 
be  discharged  with  costs,  and  the 
amendments  expunged.  After  a  de- 
murrer has  been  overruled,  and  no- 
tice of  appeal  given,   the  plaintiff 


cannot  obtain  an  order  of  course  to 
dismiss  his  bill,  with  costs." 

'■^Flynn  v.  Third  Nat.  Bank,  123 
Mich.  643,  81  N.  VV.  573;  Pacific  Live- 
stock Co.  V.  Hanley  (U.  S.  C.  C, 
1898),  98  Fed.  327;  Lowry  v.  Stapp 
(Tenn.  Ch.  App.,  1899),  53  S.  W.  194; 
Larter  v.  Canfield,  59  N.  J.  Ch.  461. 
45  Atl.  616;  Robinson  v.  Kunkleman, 
117  Mich.  193,  75  N.  W.  451;  Miller  v. 
Hare,  43  W.  Va.  647,  28  S.  E.  722. 
Where  only  a  part  of  the  bill  is  de- 
murrable the  demurrer  should  be 
taken  to  such  part  and  should  not 
be  directed  to  the  bill  as  a  whole, 
and  if  it  is  so  directed  it  will  be  over- 
ruled. Moore  v.  Alabama,  etc.  Bank, 
120  Ala.  89,  23  So.  831;  Overall  v. 
Avant  (Tenn.  Ch.  App,),  46  S.  W. 
1031;  Hall  v.  Calvert  (Tenn.  Ch. 
App.),  46  S.  W.  1120;  Barksdale  v. 
Davis,  114  Ala.  63.3.  A  demurrer  for 
want  of  equity  cannot  be  sustained 
if  the  court  is  satisfied  that  proof 
can  be  made  under  the  allegations 
of  the  bill  showing  the  cause  to  be 
an  equitable  one.  Ernst  v.  Elmira, 
etc.  Co.,  54  N.  Y.  S.  116;  Williams  v. 
Hubbard,  Walk.  Ch.  (Mich.)  28; 
Thayer  v.  Lane,  Harr.  Ch.  (Mich.) 
247;  Wilmarth  v.  Woodcock,  58 
Mich.  482;  Carney  v.  Carney.  63 
Mich.  382;  Hatch  v.  Village  of  St. 
Joseph,  68  Mich.  230. 


170  DEFENSES   BY  DEMURRER,  [§  132. 

Any  pleading  which  traverses  those  facts  would  be  inconsist- 
ent with  a  demurrer,  and  so  when  a  defendant,  after  having 
demurred  to  the  bill,  files  a  plea  or  answer  which  controverts 
the  facts  of  the  bill,  the  demurrer  will  be  overruled.  And  so 
where  a  defendant  filed  a  demurrer  to  a  bill,  and  afterwards 
an  answer  denying  allegations  of  facts  made  in  the  bill,  it  was 
held  that  the  demurrer  should  be  treated  as  overruled  by  the 
answer.^ 

In  Drost  v.  Hall"^  the  court  held  "that  the  answer  overlaps 
and  overrules  the  demurrer.  It  is  a  well-settled  rule  that  a 
less  favored  mode  of  defense  will  yield  to  the  more  favored, 
i.  e.,  a  plea  to  an  answer  and  a  demurrer  to  a  plea  or  an  an- 
swer. When  more  than  one  mode  of  defense  is  resorted  to,  no 
two  must  overlap,  as  the  least  overlapping  is  fatal  to  the  less 
favored  defenses." 

In  Basey  v.  Gallagher^  the  court  say:  "  The  record  does  not 
disclose  what  disposition  was  made  of  the  demurrer  to  the 
complaint,  but  as  an  answer  was  subsequently''  filed  upon  which 
the  parties  proceeded  to  a  hearing,  the  presumption  is  that  it 
was  abandoned." 

§  132.  The  effect  of  failing  to  demur. —  If  the  objection  to 
the  bill  be  that  the  case  made  by  it  does  not  warrant  the  re- 
lief prayed  for — that  it  is  without  equit}'', —  a  failure  to  inter- 
pose a  general  demurrer  would  not  waive  this  objection,  though 
it  was  apparent  upon  the  face  of  the  bill  such  an  objection 
could  be  taken  at  the  hearing;  and  this  may  be  said  to  be  the 
general  rule  where  the  demurrer  is  one  for  defect  in  substance.* 
And  so  where  the  complainant's  remedy  is  purely  a  legal  one, 
the  courts  will  refuse  to  entertain  a  bill  to  enforce  it,  even 
though  the  defendant,  instead  of  demurring,  answers.-'     But  if 

1  Strang  v.  Richmond,  etc.  Ry.  Co.,  978,  it  was  said,  "the  law  does  not 
41  C.  C.  App.  (U.  S.)474, 101  Fed.  511.  favor  the  raising  of  technical  ques- 

2  52  N.  J.  Eq.  68,  29  Atl.  437;  Mitf.  tions  after  hearing  upon  the  merits, 
Eq.  PI.  (4th  ed.)  209;  Langd.  Eq.  PI.  and  will  not  permit  the  dismissal  of  a 
103;  Story,  Eq.  PI.  465;  1  DanL  Ch.  PI.  bill  upon  a  demurrer  clause  in  the 
&  Pr.  570,  616,  791;  Veghte  v.  Water  answer  unless  the  bill  is  fatally  de- 
Power  Co.,  19  N.  J.  Eq.  145.  fective,  and  past  remedy  by  amend-^ 

3  20  Wall.  (U.  S.)  670,  679;  1  Fos-  ment,"  Barton  v.  Gray,  48  Mich, 
ter's  Fed.  Pr..  sea  122.  164;  Baumau    v.   Bean,  57  Mich.   1; 

*  Herbert  V.  Hobbs,  3  Stew.  (Ala.)  9;     Tyson  v.  Decator,  etc.  Co.,  121  Ala, 
Lockard  v.  Lockard,  16  Ala.  423.    In     414,  26  S.  507. 
Smith  v.Blake,96  Mich.  542,  56  N.  W.        SBinney  v.Turner,Walk.(Miss.)498.- 


I  133.]  DEFENSES  BY  PLEA. 


171 


the  objection  is  formal  and  technical,  in  such  case  failure  to 
demur  and  going  to  hearing  on  the  merits  would  waive  the 
objection.  And  where  the  objection  was  for  want  of  obviously 
necessary  parties  it  was  held  to  be  waived  by  failing  to  demur 
for  that^eason.^  And  where  defendant  failed  to  demur  for 
misjoinder  of  parties,  the  defendant  answering  and  going  into 
the  merits  of  the  case  was  held  to  have  waived  the  defect.^ 
The  same  rule  applies  where  the  bill  is  multifarious,  or  its 
allegations  are  inconsistent  and  repugnant  to  each  other;  or 
where  it  appears  upon  the  face  of  the  bill  that  there  is  an  ade- 
quate remedy  at  law.  In  such  case  the  objection  should  be 
taken  by  demurrer,  and  if  not  taken  and  the  defendant  answers 
and  goes  to  a  hearing  upon  the  merits,  it  will  be  held  that  the 
defects  are  waived.^  It  may  be  said,  however,  that  the  court 
may,  if  the  ends  of  justice  demand  it,  dismiss  a  bill  at  the 
hearing,  even  though  the  defendant  has  failed  to  raise  objec- 
tions by  demurrer.  It  has  been  so  held  in  case  of  multifarious- 
ness.* 

II.  Defense  by  Plea. 

§  133.  The  plea.— A  plea  in  equity  may  be  said  to  be  a 
pleading  by  which  the  defendant  meets  the  case  made  by  the 
bill  of  complaint  by  alleging  some  one  fact,  or  several  facts 
which,  taken  together,  make  out  the  one  fact,  and  demanding 
the  judgment  of  the  court  whether  the  special  matter  urged 
is  not  a  complete  defense  to  the  action  commenced  by  the  bill. 
It  is  reducing  the  defense  to  a  single  question,  as,  lor  ex- 
ample, that  the  action  is  barred  by  the  statutes  of  limitation 
or  the  statutes  of  fraud ;  that  there  has  been  a  release  of  the 
subject-matter  by  the  plaintiff;  that  there  is  another  suit 
pending  between  the  same  parties  for  the  same  subject-matter, 

1  Oliphant  v.  Hartley.  33  Ark.  465.  swer."     Droste  v.  Hall,  52  N.  J.  Eq. 

2  Southern  Life.  etc.  Co.  v.  Lanier,  68,  39  Atl.  437;  Crocker  v.  Dillon.  133 
5  Fla.  no.  Mass.  91;  Labadie  v.  Hewitt,  85  IlL 

3  siiook'  V.  Pearsall,  95  Mich.  534.  341;  Bell  v.  Woodward,  42  N.  H.  189; 
The  court  say:  "The  objection  for  Sanborn  v.  Adair,  37  N.  J.  Eq.  32; 
multifariousness,  if  it  has  any  force.  Green  v.  Richards,  33  N.  .J.  Eq,  32; 
should  have  been  raised  by  demurrer.  Paine  v.  Slocum,  56  Vt.  504. 

We  think,  too,  that  the  objection  for  *  Hamilton  v.  Whitridge,    11  Md. 

want  of  parties,  under  the  circum-  128;  Tartar  v.   Gibbs,   34  Md.   323; 

stances   of  this    case,  should    have  Hendrickson  v,  Wallace,  81  N.  J.  Eq. 

been  raised  by  demurrer  before  an-  604. 


172  DEFENSES  BY  PLEA.  [§  133. 

a  defect  of  parties,  that  the  bill  is  multifarious,  or  any  defect 
or  defense  based  upon  a  single  salient  fact  which  completely 
answers  the  case  made,  and  upon  which,  if  found  true,  the 
court  can  base  a  decree  disposing  of  the  bill,  if  not  amended, 
and  the  case  made  by  it.*  Judge  Story  says:  "•  A  plea  has 
been  usually  described  to  be  a  special  answer  showing,  or  re- 
lying upon,  one  or  more  things  as  a  cause  why  the  suit  should 
either  be  dismissed,  or  delayed,  or  barred."' - 

Mr.  Adams,  in  his  work  on  Equity,  sums  up  the  matter  as 
follows:  "The  principle  of  a  defense  by  plea  is,  that  the  de- 
fendant avers  some  one  matter  of  avoidance,  or  denies  some 
one  allegation  of  the  bill,  and  contends  that,  assuming  the 
truth  of  all  the  allegations  in  the  bill,  or  of  all  except  that 
which  is  the  subject  of  denial,  there  is  sufficient  to  defeat  the 
plaintiff's  claim.  It  is  applicable,  like  a  demurrer,  to  any  class 
of  objections;  but  the  most  usual  grounds  of  pleas  are:  1. 
Want  of  jurisdiction.  2.  Personal  disability  in  the  plaintiff. 
3.  A  decision  already  made  by  the  court  of  chancery,  or  by 
some  other  court  of  competent  jurisdiction,  or  a  suit  already 
pending  m  a  court  of  equity  respecting  the  same  subject. 
But  the  suit  must  be  pending  in  a  court  of  equity.  If  there 
be  a  pending  action  at  law,  the  proper  course  is  to  put  the 
plaintiff  to  his  election  by  motion,  which  court  he  will  pro- 
ceed in.  4.  Want  of  equity,  where  the  equity  depends  on  a 
single  point." ' 

1  Story.  Eq.  PI.,  sees.  649,  650,  651:  original  complainant  having  de- 
Farley  V.  Kittson,  120  U.  S,  303;  prived  himself  of  the  power  to  fur- 
Union  Branch,  etc.  Ry.  Co.  v.  East  ther  prosecute  his  action,  and  the 
Tennessee,  etc.  Ry.  Co.,  U  Ga.  827.  truth  of  the  defendants'  plea  setting 

2  Story.  Eq.  Pi.,  sec.  649:  Mitf.  Eq.  up  that  fact  being  confessed,  the 
PL,  by  Jeremy,  219;  Coop.  Eq,  Pi.  court  should  regard  the  plea  as 
223.  See  also  Shipman's  Eq.  PI.  allowed.  The  rule  seems  to  be  set- 
277.  tied  that  the   allowance   of  a  plea 

3  Adams'  Eq..  marg.  p.  336.  In  Ful-  which  either  constitutes  a  full  de- 
ton  V.  Greacen  et  al.,  44  N.  J.  Eq.  fense  to  the  complainant's  who'.e 
44.S.  15  AtL  827,  the  court  say:  "The  case  or  deprives  him  of  all  power  to 
truth  of  the  plea  being  confessed,  further  prosecute  his  action  will,  if 
the  ca--e  stands,  so  far  as  the  rights  he  holds  an  injunction,  entitle  the 
of  the  parties  are  concerned,  sub-  defendant  to  its  dissolution.  The 
stantially  as  though  an  order  had  allowance  of  the  plea  will  not  ipso 
been  made  allowing  the  plea.  If  facto  dissolve  the  injunction,  but  a 
mere  matter  of  procedure  or  form  dissolution  will  generally  be  granted 
be  put  aside,  that  is,  the  precise  as  of  course,  on  motion."  Phillips  v. 
present  position   of  the   casa     The  Langhorn,  1  Dick.  148. 


§   134:.]  DEFENSES  BY  PLEA.  173 

§134.  The* plea  sfconld  contain  but   one  defense. —  The 

plea  is  the  pleading  adopted  to  .meet  the  case  with  a  single 
all-governing  question,  as  we  have  seen,  and  if  more  than  this 
is  incorporated  in  the  plea  it  becomes  subject  to  the  objection 
that  it  is  a  double  plea,  is  informal  and  multifarious  and  there- 
fore bad.  It  is  not  the  office  of  the  plea  in  equity  to  deny  the 
allegations  in  the  bill  of  complaint,  and  if  it  were  allowed  a 
defendant  by  plea  to  traverse  two  or  more  allegations  the 
rule  which  has  always  governed  pleas  would  be  broken  down, 
for  if  three  or  more  denials  of  allegations  were  allowed,  then 
denials  to  all  the  allegations  of  the  bill  might  be  allowed  and 
the  defendant  would  thus  intrench  upon  the  office  of  that 
other  pleading,  the  answer  (which  we  shall  discuss  later),  and 
ask  the  court  for  a  judgment  without  a  trial  of  the  cause,  or,  at 
most,  a  trial  of  but  a  portion  of  it.  "  For,  if  two  matters  of 
defense  may  be  thus  offered,  the  same  reason  will  justify  the 
making  of  any  number  of  defenses  in  the  same  way,  by  which 
the  ends  intended  b}'  a  plea  would  not  be  obtained ;  and  the 
court  would  be  compelled  to  give  instant  judgment  upon  a 
variety  of  defenses,  with  all  their  circumstances,  as  alleged  by 
the  plea,  before  they  are  made  out  in  proof;  and,  consequently, 
would  decide  upon  a  complicated  case  which  might  not  exist." ' 
In  SaZtus  v.  Tohias"^  the  chancellor,  discussing  this  question, 
says:  "  The  question  was  much  discussed  before  Lord  Thurlow 
in  Whitbread  v.  Brockhurst  (1  Bro.  404,  2  Yes.  &  Bea.  153,  note, 
S.  C),  and  he  held  that  two  pleas,  applying  to  cases  of  differ- 
ent natures,  and  distinct,  not  only  in  the  form  of  the  plea,  but 

1  Story,  Eq.,  sec.  653.  In  Reissner  Rairdon  Stone  Co.,  87  Fed.  969.  A 
V.  Anness,  3  Ban.  &  A  148,  Fed.  Cas.  general  denial  of  particular  aver- 
No.  11.686,  it  was  held  that  where  ments  in  the  bill  is  insufficient;  the 
more  than  one  point  of  defense  was  specific  facts  must  be  denied,  and 
relied  upon  it  must  be  stated  by  an-  the  defense  reduced  to  a  single  point, 
swer  and  not  by  plea,  for  if  it  should  Mains  v.  Homer  Steel  Fence  Co.,  116 
be  stated  by  plea  the  plea  in  such  Mich.  526,  7-1  N.  W.  735;  Manley  v. 
case  would  be  bad  for  duplicity.  Mickle,  55  N.  J.  Eq.  563,  37  AtL  738. 
And  in  Albany  City  Bank  v.  Dorr,  And  where  the  bill  is  based  upon 
Walk.  Ch.  (Mich.)  317,  it  was  held  two  theories,  a  plea  setting  up  a  bar 
that  "a  plea  must  rest  the  defease  to  a  recovery  upon  only  one  of  the 
upon  a  single  point,  and  a  plea  con-  theories  is  bad.  Honor  v.  Wing 
taining  two  distinct  points  is  bad."  (Ala.),  31  Sa  3. 

A  plea  should  state  some  single  ob-  27   Johns.  214;  Bunker  Hill,  etc 

jection  which  would  be  a  complete  Ca  v,  Shoshone,  etc.  Co.,  44  C.  C.  A» 

defense.     Knox  Rock  Blasting  Ca  v.  200,  109  Fed.  504. 


174  DEFENSES  BY  PLEA.  [§   134, 

in  the  point  of  equity  raised  by  thera,  were  inadmissible.  The 
reason  why  this  court  does  not  admit  such  pleas,  containing  dif- 
ferent and  distinct  points,  is  that  you  may  put  all  the  different 
circumstances  together  in  your  answer,  which  you  cannot  do 
at  common  law.  There  is,  therefore,  not  the  same  reason  in 
equity  as  at  law  for  pleading  double.  The  use  of  a  plea  here 
is  to  save  time,  expense  and  vexation.  If  one  point  will  put 
an  end  to  the  whole  cause,  it  is  important  to  the  administra- 
tion of  justice  that  it  should  be  pleaded;  but  if  you  are  to 
state  many  matters,  the  answer  is  the  more  commodious  form 
to  do  it  in.  If  the  defendant  might  be  permitted  to  bring  two 
points,  on  which  the  cause  depends,  to  issue  by  his  plea,  he 
might  bring  three,  or  twenty,  and  so  on,  until  all  the  matters 
in  the  bill  are  brought  to  issue  by  the  plea. 

"  The  reasoning  of  Lord  Thurlow  is  supposed  to  be  weighty 
and  decisive;  and  since  that  time  it  has  been  the  constant  lan- 
guage of  the  court  that  the  plea  must  reduce  the  defense  to  a 
single  point,  and  that  a  defendant  can  never  plead  double. 
There  is  not  the  same  necessity  here  as  at  law  for  this  kind  of 
pleading,  as  the  plea  is  not  the  only  mode  of  defense." 

"But  the  plea  is  not  rendered  double  by  the  mere  insertion 
of  averments  therein  which  are  necessary  to  exclude  conclu- 
sions arising  from  allegations  in  the  bill  intended  to  anticipate 
and  defeat  the  bar  which  might  be  set  up  in  the  plea."  ^    And 

1  Bogardus  v.  Trinity  Church,  4  answer  denying  all  the  matters  stated 
Paige  (N.  Y.),  178.  "But  as  the  in  the  bill,  as  evidence  to  displace  or 
complainant  had  stated  a  variety  of  defeat  the  bar  set  up  by  the  plea; 
matters  in  his  bill,  which,  if  admit-  and,  as  was  usual  with  him  in  such 
ted  to  be  true,  would  be  evidence  to  cases,  he  left  the  question  undecided, 
counter-prove  the  allegation  of  an  But  Lord  Redesdale,  whose  opinion 
adverse  entry  under  claim  of  title,  upon  a  case  of  equity  pleading  is  al- 
and of  an  adverse  holding,  it  became  ways  esteemed  the  highest  author- 
necessary  to  negative  those  matters  ity,  says:  'Upon  argument  of  a  plea, 
by  general  averments  in  the  plea,  every  fact  stated  in  the  bill,  and  not 
and  to  support  the  plea  by  an  an-  denied  by  the  answer  in  support  of 
swer  as  to  those  matters.  (Mitf.,  4th  the  plea,  must  be  taken  for  true. 
Lond.  ed.,  240,  271;  1  Brown's  Ch.  Pr.  The  plea,  therefore,  to  the  relief  (of 
332,  33S;  Sanders  v.  King,  Mad.  &  a  stated  account)  ought  to  have 
Geld.  Rep.  65.)  In  the  case  of  Bailey  averred  that  the  account?  settled  in- 
V.  Adams  (6  Ves.  Jun.  593)  Lord  Eldon  eluded  all  dealings  between  the  par- 
doubted  whether  it  was  necessary  to  ties;  that  the  accounts  were  just  and 
insert  negative  averments  in  the  plea,  fair,  and  that  the  balance  as  stated 
as  well  as  to  support  the  same  by  an  was  justly  due;  and  these  averments 


§  135.] 


IDEFENSES  BY  PLEA.f. 


1T5 


it  may  be  said,  and  the  rule  seems  to  be,  that  the  plea  may 
contain  several  averments,  provided  they  all  conduce  to  a 
single  point  raised  as  a  defense  to  the  bill.^ 

§  135.  The  plea  differs  from  a  demurrer, —  The  demurrer, 
as  we  have  seen,  depends  upon  objections  that  are  apparent 
upon  the  face  of  the  bill;  and  for  facts  to  sustain  it  it  is  en- 
tirely reliant  upon  the  well-pleaded  facts  therein  set  forth. 
But  the  plea  rests  upon  defects  made  in  the  case  that  do  not 
appear  upon  the  face  of  the  bill,  but  which  the  defendant,  in 
order  to  sustain  his  plea,  must  show  to  the  court;  it  rests  upon 
matters  either  dehors  the  bill,  or  foreign  to  it,  that  will  delay 
or  bar  the  suit,  or  denials  of  substantial  matters  set  forth  in 
the  bill  touching  the  substantial  fact  which  is  made  the  basis 
of  the  plea.  In  the  one  case,  the  demurrer,  the  facts  upon 
which  the  defense  is  based,  are  already  shown  by  the  allega- 
tions in  the  bill  which  are  taken  to  be  true,  while  in  the  other 
case,  the  plea,  the  facts  upon  which  the  defense  is  based,  must 
be  proven,  and  upon  them,  as  we  shall  see,  an  issue  may  be 
raised  between  the  parties. 


ought  to  have  been  supported  by  an 
answer  to  the  same  eflfect,'  etc. 
(Roche  V.  Morgell,  2  Sch.  &  Lef.  726.) 
Again,  in  his  Treatise  on  Pleading, 
he  says:  '  Nothing  can  be  in  issue  on 
the  plea  but  what  is  contained  in  the 
plea;  and  every  charge  in  the  bill, 
not  negatived  by  the  plea,  is  taken 
to  be  true  on  the  argument  of  tlie 
plea.  (Mitf.  PI.,  4th  Lond.  ed.,  243. 
See  also  Gilb.  For.  Rom.  58;  3  Johns. 
Ch.  391.)  Indeed,  it  seems  strange 
that  any  doubt  should  ever  have  ex- 
isted on  this  subject;  for  it  is  well 
settled  that  when  issue  is  taken  upon 
a  plea,  either  in  the  first  instance,  or 
after  it  has  been  allowed  upon  argu- 
ment, if  the  truth  of  the  matters 
pleaded  is  established,  the  suit  is 
barred  so  far  as  the  plea  extends. 
(1  Newl.  Pr.,  3d  Lond.  ed.,  165;  Gilb. 
For.  Rom.  95;  1  Mitf.  PI.  241.)  If, 
therefore,  the  defendant  was  not 
bound,  by  averments  in  his  plea,  to 
negative  the  allegations  in  the  bill, 


inserted  for  the  purpose  of  antici- 
pating and  displacing  the  bar,  the 
complainant  would  frequently  be 
compelled  to  rely  upon  the  defend- 
ant's oath  alone  for  the  evidence  of 
the  truth  of  such  allegations;  and 
he  would  have  no  opportunity  to 
contradict  that  oath  under  the  issue 
joined  upon  the  plea.  If  that  course 
of  pleading  was  adopted  the  whole 
plea  might  be  true,  although  the  an- 
swer in  support  of  such  plea  was  ab- 
solutely false,  and  could  be  proved 
to  be  so  if  an  opportunity  was  af- 
forded to  the  complainant  for  that 
purpose." 

1  Reissner  v.  Anness,  3  Ban.  &  A. 
148,  Fed.  Gas.  No.  11,686.  In  Hazard 
V.  Durand  (C.  C.),  25  Fed.  26,  it  was 
held  that  a  plea  might  contain  aver- 
ments of  several  facts,  but  they  must 
all  conduce  to  a  single  point.  But 
see  Gilbert  v.  Murphy,  lUO  Fed.  161, 
where  the  rule  would  seem  to  be 
somewhat  enlarged. 


176 


DEFENSES  BY  PLEA. 


[§  130. 


In  Farley  v.  Kittson^  the  court  say:  "But  the  proper  office 
of  a  plea  is  not,  like  an  answer,  to  meet  all  the  allegations  of 
the  bill;  nor  like  a  demurrer,  admitting  those  allegations,  to 
deny  the  equity  of  the  bill;  but  it  is  to  present  some  distinct 
fact  which  of  itself  creates  a  bar  to  the  suit,  or  to  the  part  to 
which  the  plea  applies,  and  thus  to  avoid  the  necessity  of  mak- 
ing the  discovery  asked  for,  and  the  expense  of  going  into  the 
evidence  at  large." '^  And  it  has  been  held  that  a  plea  will 
be  overruled  which  alleges  only  facts  which  appear  upon  the 
face  of  the  bill  and  raises  only  an  objection  which  could  have 
been  made  by  a  demurrer,  it  being  the  office  of  a  plea  to  bring 
forth  sufficient  matter  —  facts  which  do  not  appear  upon  the 
face  of  the  bill.' 

§  136.  The  plea  differs  from  an  answer. —  The  discussion 
of  the  essential  difference  between  the  plea  and  answer  will 
only  further  emphasize  that  most  essential  characteristic  of  a 


1  120  U.  S.  303.  The  court  in  Far- 
ley V.  Kittson  quotes  from  element- 
ary authority,  giving  a  history  of 
the  subject.  "The  distinction  be- 
tween a  demurrer  and  a  plea  dates 
as  far  back  as  the  time  of  Lord 
Bacon,  by  the  fifty-eighth  of  whose 
ordinances  for  the  administration  of 
justice  in  chancery,  'a  demurrer  is 
properly  upon  matter  defective  con- 
ttiined  in  the  bill  itself,  and  no  for- 
eign matter;  but  a  plea  is  of  foreign 
matter  to  discharge  or  stay  the  suit, 
as  that  the  cause  hath  been  formerly 
dismissed,  or  that  the  plaintiff  is  out- 
lawed or  excommunicated,  or  there 
is  another  bill  depending  for  the 
same  cause,  or  the  like.'  Orders  in 
Chancery  (Beanies'  ed.),  26.  Lord 
Redesdale,  in  his  Treatise  on  Plead- 
ings, says:  "A  plea  must  aver  facts 
to  which  the  plaintiff  may  reply, 
and  not  in  the  nature  of  a  demurrer, 
rest  on  facts  in  the  bill.'  Mitf.  PI. 
297.  And  Mr.  Jeremy,  in  a  note  to 
this  passage,  commenting  on  the 
ordinance  of  Lord  Bacon,  observes: 
'The  prominent  distinction  between 
a  plea  and  a  demurrer  here  noticed 


is  strictly  true,  even  of  that  descrip- 
tion of  plea  which  is  termed  nega- 
tive, for  it  is  the  affirmative  of  the 
proposition  which  is  stated  in  the 
bill;'  in  other  words,  a  plea  which 
avers  that  a  certain  fact  is  not  as 
the  bill  affirms  it  to  be,  sets  up  mat- 
ter not  contained  in  the  bill.  That 
an  objection  to  the  equity  of  the 
plaintifl!'s  claim,  as  stated  in  the  bill, 
must  be  taken  by  demurrer  and  not 
by  plea  is  so  well  established  that  it 
has  been  constantly  assumed  and 
therefore  seldom  stated  in  judicial 
opinions;  yet  there  are  instances  in 
which  it  has  been  explicitly  recog- 
nized by  other  courts  of  chancery 
as  well  as  by  this  court."  Billing  v. 
Flight,  1  Madd.  130:  Steff  v.  An- 
drews, 2  Madd.  6;  Varick  v.  Dodge, 
9  Paige  (N.  Y.,  149;  Phelps  v.  Gar- 
row,  3  Edw.  Ch.  139;  Rhode  Island 
V.  Massachusetts,  14  Pet.  (U.  S.)  210, 
258,  263;  National  Bank  v.  Insurance 
Co.,  104  U.  S.  54,  76. 

2  Mitf.    PI.  14,  219,295;  Story,  Eq. 
PI.  649,  653. 

3  Cozine  v.  Graham,  2  Paige  (N.  Y,),, 
177. 


§  136.] 


DEFENSES  BY  PLEA. 


177 


plea  in  equity,  namely,  that  it  interposes  a  defense  to  the  case 
made  which  is  based  upon  a  single  point. 

The  answer  in  equity  is  the  pleading  by  which  the  defend- 
ants meet  each  allegation  in  the  bill  ol'  complaint,  either  by  a 
denial,  an  admission,  or  such  statement  that  would  leave  the 
complainant  to  his  proofs.  It  is  by  this  pleading  that  the  de- 
fendant makes  a  general  defense  upon  the  merits  of  the  case, 
not  depending  upon  objections  appearing  upon  the  face  of  the 
bill,  nor  upon  a  single  defense  or  objection  by  way  of  a  plea. 
The  answer  may  raise  any  number  of  points  of  defense  if  they 
are  material  and  pertinent  and  meet  the  allegations  of  the  bill. 
Where  the  bill  of  complaint  alleged  fraud  based  upon  a  variety 
of  circumstances,  it  was  held  that  in  such  case  the  defense 
should  be  made  by  answer  and  not  by  plea,  as  the  examination 
in  proof  of  the  fraud  must  still  be  at  large,  and  the  effect  of 
allowing  a  plea  in  such  case  would  be  to  have  the  judgment 
of  the  court  on  the  circumstances  of  the  case  before  they  were 
proven.^ 


1  Carroll  v.  Potter, Walk. Ch.  (Mich.), 
355;  Coop.  Eq.  PI.  223.  In  Loud  v. 
Sergeant,  1  Edw.  Ch.  (N.  Y.)  164, 
the  vice-chancellor  said:  "The  cri- 
terion by  which  to  determine  how- 
far  a  defense  is  proper  by  way  of 
plea  is  to  ascertain  whether  the 
cause  is  thereby  reduced  to  a  single 
point  creating  a  complete  bar  to  the 
suit.  It  is  true,  the  matter  of  a  plea 
may  consist  of  a  variety  of  facts  and 
circumstances,  provided  they  are  not 
inconsistent  with  each  other  and  all 
tend  to  one  point,  making  out  one 
connected  proposition  sufficient  of 
itself  to  form  a  defense  to  the  bill  — 
and  not  showing  separate  and  dis- 
tinct defenses,  one  of  which  would 
have  been  sufficient;  for  then,  the 
plea  will  be  bad  for  duplicity.  Coop. 
Eq.  223,  225;  Beames'  PI.  19,  and 
cases  there  mentioned.  I  cannot 
say  the  plea  under  consideration 
falls  within  the  rule  connected  with 
duplicity;  because  I  do  not  perceive 
how  any  of  the  matters  which  are 
12 


pleaded,  when  taken  separately, 
could  constitute  a  bar  or  defense  to 
the  suit.  I  am  also  at  a  loss  to  dis- 
cover upon  what  principle  the  whole 
of  the  matter  taken  together  can  be 
a  bar.  It  seems  to  me  much  more 
expedient  that  this  defense,  if  it  is 
to  be  available,  should  be  taken  by 
answer.  The  object  of  a  plea  is  to 
save  the  parties  the  expense  and 
trouble  of  examining  witnesses  at 
large,  by  putting  an  end  to  the  suit 
upon  some  single  ground  of  defense. 
Where  this  defense  consists  of  a 
variety  of  facts  and  circumstances, 
there  can  be  no  saving  by  a  plea; 
because  the  examination  of  wit- 
nesses must  still  be  as  much  at  large 
as  if  the  defendant  had  put  it  for- 
ward in  an  answer;  and  another 
reason  given  in  the  books  is  that,  by 
allowing  a  plea  containing  such 
various  matter,  the  court  gives  judg- 
ment, in  effect,  upon  the  facts  and 
circumstances  of  the  case  before 
they  are  made  out  by  proof." 


ITS  DEFENSES  BY  PLEA.  [§  13T. 

§137.  The  extent  of  the  plea.— It  is  a  general  rule  of 
equity  pleading  that  the  defendant  must,  if  he  would  inter- 
pose a  defense,  meet  the  whole  bill  either  by  demurrer,  plea 
or  answer,  and  so  the  defendant  may  plead  to  the  whole  bill 
if  the  single  point  of  defense  meets  the  whole  case  made  by 
the  bill,  or  he  may  plead  to  a  part  of  the  bill,  answer  to  a  part, 
or  demur  to  a  part;  but  in  such  case  he  must  indicate  to  which 
part  he  pleads,  to  which  part  he  demurs,  and  to  which  he  an- 
swers.    In   Claw2>U7i  v.  Chamjplin^  the  vice-chancellor  said: 
"It  is  well  understood  that  the  system  of  equity  pleading  ad- 
mits of  an  answer,  plea  and  demurrer  to  the  same  bill;   but 
then  they  must  be  to  different  parts  of  the  bill — the  pleader 
taking  care  to  distinguish  the   parts  to  which  each  pleading 
applies.     The  whole  of  the  bill  must  be  met  in  some  form  of 
pleading,  either  singly  or  by  the  several  modes  of  defense 
combined;  still,  they  must  be  regarded  as  distinct  pleadings, 
and  each  must  be  made  to  serve  its  proper  office  and  purpose, 
and  be  a  perfect  pleading  in  itself.     Although  a  plea  in  many 
cases  requires  an  answer  to  be  made  to  some  parts  of  the  bill 
in  order  to  render  it  effectual  as  a  bar,  and  by  an  answer,  as 
before  remarked,  the  defendant  may  claim  to  have  the  benefit 
of  a  demurrer  or  a  plea,  yet  this  is  very  far  from  confounding 
pleadings,  and  certainly  can  give  no  right  to  substitute  one 
for  another;  as,  for  instance,  an  answer  for  a  demurrer  or  a 
plea,  and  to  contain  no  more   than  such  a  form  of  pleading 
would  require,  if  adopted.    To  allow  of  such  a  departure  from 
the   true  course  of  pleading  would   be  inconsistent  with  the 
principles  upon  which  the  system  is  founded."      But  the  plea 
cannot  be  made  general  as  a  plea  to  all  the  parts  of  the   bill 
which  are  not  answered  or  demurred  to,  nor  will  the  defend- 
ant be  permitted  to  make  indefinite  and  uncertain  applications 
of  the  pleas  to  different  parts  of  the  bill.    Certainty  is  required 
in  this  particular  that  the  court  may  know  by  reference  to  the 
plea  to  which  particular  part  of  the  bill  defendant  pleads;  but 
the  plea  may  be  good  in  part  and  bad  in  part,  and  the  court 
will  apply  it  so  far  as  it  meets  the  case  made   by  the  bill.     In 
this  respect  it  differs  from  the  demurrer. 

The  rule  is  very  clearly  stated  by  Daniell  as  follows:     "  A 

1 2  Edw.  Ch.  (N.  Y.)  362. 


§  138.]  DEFENSES  BY  PLEA.  179 

defendant  may  plead  different  matters  to  separate  parts  of  the 
same  bill,  in  the  same  manner  that,  as  we  have  seen,  a  defend- 
ant may  put  in  different  demurrers  to  different  portions  of  the 
bill.  A  defendant  may,  in  like  manner,  plead  and  demur, 
or  plead  and  answer,  to  different  parts  of  the  same  bill,  pro- 
vided he  points  out,  distinctly,  the  different  portions  of  the 
bill  which  are  intended  to  be  covered  by  the  plea,  the  de- 
murrer and  the  answer;  he  must,  likewise,  where  he  puts  in 
several  pleas  to  the  same  bill,  point  out  to  what  particular 
part  of  the  bill  each  plea  is  applicable.  But,  although  the 
general  rule  is,  that  in  the  case  of  a  partial  plea  a  defendant 
must  specify  distinctly  what  part  of  the  bill  he  pleads  to,  the 
rule  which  has  been  stated,  as  applicable  to  a  demurrer,  namely, 
that  it  cannot  be  good  in  part  and  bad  in  part,  is  not  appli- 
cable with  the  same  strictness  to  a  plea;  for  it  has  been  re- 
peatedly decided  that  a  plea  in  equity  may  be  bad  in  part  and 
not  in  the  whole,  and  the  court  will  allow  it  to  so  much  of  the 
bill  as  it  is  properly  applicable  to. 

"  The  rule  that  a  plea  may  be  allowed  in  part  only  is  to  be 
understood  with  reference  to  its  extent,  that  is,  to  the  quan- 
tity of  the  bill  covered  by  it,  and  not  to  the  ground  of  defense 
offered  by  it;  and  if  any  part  of  the  defense  made  by  the  plea 
is  bad,  the  whole  must  be  overruled."  ^ 

§  138.  Necessary  averments. —  While  it  is  true  that  the 
defense  by  plea  must  be  based  upon  a  single  point  which  meets 
and  is  a  complete  defense  to  the  case  made  by  the  bill,  it  is 
also  a  rule  that  all  pertinent  and  necessary  facts  which  are 
essential  to  bring  the  defense  to  that  point  must  be  set  forth 
in  the  plea  so  that  the  court  can  determine  whether  the  case 
which  the  plea  presents  to  the  court  is  a  bar  to  the  case  made 
by  the  bill,  or  to  that  part  of  the  bill  to  which  the  defense  is 
aimed.  If,  for  example,  the  defense  sought  to  be  made  is  by 
way  of  release,  the  plea  must  set  forth  sufficient  facts  and  cir- 
cumstances which,  proven  to  be  true,  would  constitute  a  re- 

1 1  Danl.  PI.  &  Pr.  611.    In  French  may  be  ordered  to  stand  as  to  so 

et  al.  V.  Shotwell,  5  John.  Ch.  561,  it  much  of  tiie  bill  to  which  it  properly 

was  held  that  a  plea  may  be  good  in  applies,  and  the  defendant  must  an- 

part  and  bad  in  part;  but  where  a  swer  to  the  residue.    Rhino  v.  Emeiy, 

plea  is  more  extensive  than  t!ie  sub-  79  Fed.  483. 
ject-matter  to  which    it  relates,  it 


180  DEFENSES  BY  PLEA.  [§  138. 

Jease;  and  so  if  the  defense  be  that  the  claim  of  the  plaintiff 
is  barred  by  the  statute  of  limitations  the  plea  must  set  forth 
the  facts  and  circumstances,  which,  proven  to  be  true,  would 
constitute  a  bar  to  the  case  made  by  the  bill  because  of  the 
statute  of  limitations. 

The  rule  governing  pleas  in  this  respect  is  the  same  that 
governs  pleadings  generally,  namely,  that  the  defense  sought 
to  be  made  must  be  issuable,  i.  e.,  so  stated  that  the  facts  upon 
which  it  is  based  may  be  met  by  the  plaintiff  by  denials  or 
confession  and  avoidance  if  he  desires  to  do  so. 

In  McCloskey  V.  Barr^  the  court  say:  "All  the  facts  nec- 
essary to  render  the  plea  a  complete  equitable  bar  to  the  case 
made  by  the  bill  (so  far  as  the  plea  extends)  must  be  clearly 
and  distinctly  averred  in  order  that  the  complainant  or  plaint- 
iff may  take  issue  upon  them.  In  a  plea  in  bar  the  defendant 
assumes  the  onus  jprobandi,  and  must  state  the  case  or  facts 
on  which  he  relies  with  the  same  clearness  that  a  plaintiff  or 
complainant  is  required  to  do  when  by  his  suitor  bill  he  tend- 
ers the  defendant  an  issue.  When  the  defendant  undertakes, 
by  plea,  setting  up  matters  in  pais  to  bar  the  complainant,  it 
is  just  as  incumbent  upon  him  to  set  out  the  facts  on  which 
he  relies  as  it  will  be  incumbent  to  prove  them  on  the  trial  of 
issues  tendered.  Strictness  is  demanded  in  such  pleas.  Thus 
it  has  been  held  that  in  a  plea  of  a  release  the  defendant  must 
set  out  the  consideration  upon  which  the  release  was  made  in 
order  to  make  the  plea  good.  So,  in  setting  up  the  plea  of  in- 
nocent purchasers  without  notice,  the  plea  must  contain  all  the 
requisites  of  such  a  defense,  including  the  payment  of  the  con- 
sideration." Then,  too,  for  the  purpose  of  determining  the 
issue  made  by  it,  the  plea  admits  all  the  facts  alleged  in  the 
bill,  which  are  uncontroverted,  to  be  true;  it  would  therefore 
follow  that  the  plea  would  be  overruled  if  there  are  such  un- 
controverted facts  which  would  destroy  its  effect.  "  It  is  now 
firmly  established  that  the  plea  itself,  as  well  as  the  answer, 
must  contain  averments  negativing  the  facts  and  circum- 
stances set  up  in  the  bill  in  avoidance  of  the  bar  or  defense^ 
for  otherwise  the  plea  will  not  amount  to  a  complete  defense 

138  Fed.  165;  Secombe  v.  Campbell,  18  Blatchf.  (U.  S.)  108. 


§   139.]  DEFENSES  BY  PLEA.  181 

to  the  bill,  since  the  denial  of  those  facts  and  circumstances  is 
in  truth  the  only  point  in  controversy."^ 

In  Kane  v.  Bloodgood"'  the  chancellor  said:  "A  pure  plea 
of  the  statute  (of  limitations)  is  no  bar,  where  there  are  cir- 
cumstances stated  in  the  bill  which  take  the  case  out  of  it,  as 
an  offer  to  account,  an  acknowledgment  of  the  debt,  a  prom- 
ise to  pay,  or  to  do  what  was  right  and  just,  or  a  promise  to 
pay  when  assets  came  to  hand,  unless  the  plea  be  accompanied 
with  an  averment  or  answer  destroying  the  force  of  these 
circumstances." 

§  139.  A  division  of  pleas  based  upon  facts  alleged.— De- 
pending upon  the  facts  alleged  in  the  pleadings  and  the  source 
from  which  they  are  derived,  pleas  have  been  classified  as 
(a)  pure  pleas,  (b)  negative  pleas,  or  pleas  not  pure,  and 
(c)  anomalous  pleas. 

{a)  A  pure  plea  is  one  which  sets  up  a  defense  to  the  bill 
based  upon  matters  of  fact  outside  of  the  bill  of  complaint;  as, 
for  example,  admitting  the  facts  as  stated  in  complainant's 
bill,  the  defendant  by  his  plea  alleges  that  there  has  been  a 
release  of  the  claim  upon  which  the  complainant  relies  which 
renders  it  entirely  nugatory;  or  that  there  has  been  a  settle- 
ment of  the  entire  claim  and  full  payment  of  the  amount 
found  to  be  true.  This  plea  is  one  which  relies  wholly  "on 
matters  dehors  the  bill."'  A  pure  plea,  as  every  other  plea, 
must  rely  upon  some  single  point  of  defense.  While  it  may 
set  up  matters  of  fact  outside  of  the  alleged  facts  in  the  bill,  it 
must  confine  the  defense  to  a  single  point,  and  if  it  is  found 
necessary  to  employ  a  variety  of  facts  not  tending  to  the  gen- 

1  story,  Eq.  PL  680.     And  where  the  paid,  yet  if  it  be  uot  in  fact  paid, 
defendants  plea  was  that  he  was  a  before  notice,  the  plea  of  a  purchase 
bona  fide  purchaser  without  notice  for  a  valuable  consideration  will  be 
the  court  held  that  "the  averment  overruled."      Jewett    v.    Palmer,    7 
must  be  not  only  that  the  purchaser  Johns.  Ch.  (N.  Y.)  64;   Souzer  v.  De- 
had  not  notice,  at  or  before  the  time  Meyer,   2  Paige   Ch.   (N.  Y.)  574;    1 
of  the  execution  of  the  deeds,  but  Danl.  Ch.    PI.  &   Pr.    612;   Kane   v. 
that  the  purchase-money  was  paid  Bloodgood,  7  Johns.  Ch.  90.  134. 
before  notica     There  must  not  only  27  Johns.  Ch.  (N.  Y.)  90.  134;  Pom- 
be  a  denial  of  notice  before  the  pur-  fret  v.  Windser.  2  Ves.  Sr.  485;  Bail- 
chase,  but  a  denial  of  notice  before  lie  v.  Sibbald,  15  Ves.  Jr.  158. 
payment  of  the  money.     Even  if  the  ^  Story,  Eq.,  sec.  651. 
pure  base- money  be  secured    to   be 


182  DEFENSES  BY  PLEA.  [§   13'J. 

eral  fact  or  point  of  defense,  the  defendant  cannot  meet  the 
case  by  plea  but  must  employ  an  answer.  "  The  office  of  a  plea 
generally,"  said  Lord  Eldon,  "  is  not  to  deny  the  equity  but  to 
bring  forward  a  fact  which,  if  true,  displaces  it;  not  a  single 
averment  .  .  .  but  perhaps  a  series  of  circumstances,  form- 
ing in  their  combined  result  some  one  fact  which  displaces  the 
equity."^  There  are  certain  rules  or  requisites  applicable  to 
pure  pleas  that  are  more  or  less  required  in  every  pleading. 
The  plea  must  be  clearly  and  distinctly  stated,  and  facts 
averred  that  will  render  the  plea  a  complete  equitable  defense 
to  the  case  made  by  the  bill,  or  to  that  part  of  the  case  to  which 
the  plea  is  made  to  apply.  The  averment  must  support  the 
plea,  as  was  said  by  the  chancellor  in  Allan  v.  Randolph?  "A 
plea  must  be  perfect  in  itself,  so  that  if  true  in  point  of  fact 
Inhere  may  be  an  end  of  the  cause."  It  should  be  direct  and 
positive  and  not  argumentative,  and  the  defense  raised  should 
be  effective  as  a  bar  to  the  case  made  by  the  bill,  or  that  por- 
tion of  it  to  which  it  is  directed,  and  based  upon  issuable  facts, 
so  that  the  plaintiff  may  meet  them  if  he  desires  to  make  an 
issue  upon  them.* 

(b)  Negative  pleas,  or  pleas  not  pure.  These  are  based  upon 
the  denial  of  some  single  salient  fact  alleged  in  the  bill  of  com- 
plaint, and  upon  which  the  complainant's  case  depends;  as, 
for  example,  a  denial  of  the  plaintiff's  interest  in  the  subject- 
matter  of  the  suit,  that  he  is  the  owner  of  the  property  in  ques- 
tion as  alleged  in  his  bill.* 

(c)  Anomalous  pleas  are  pleas  that  are  used  to  meet  allega- 
tions in  the  bill  made  in  anticipation  of  the  defense;  as,  for 
example,  where  the  complainant  in  his  bill  anticipates  that  the 

1  Rowe  V.  Teed,  15  Ves.  377,  378.  would  not  protect  the  defendant  from 

2  4  Johns.  Ch.  694.  giving   the  required   discovery,   be 

3  Story,  Eq.  PI.,  sees.  660-664.  cause,  on  a  principle  which  has  been 
*  Negative  pleas   "are    applicable  already  explained,  a  defendant  who 

when  the  plaintiff,  by  false  allegation  answers  at  all  must  answer  fully. 
on  one  point,  has  created  an  appar-  In  order,  therefore,  to  avoid  such  dis- 
ent  equity,  and  asks  discovery  as  con-  covery,  he  must  resort  to  a  negative 
sequent  thereon;  for  example,  where  plea,  denying  the  allegation  of  part- 
he  alleges  himself  to  be  a  partner  or  nership  or  heirship;  and  until  the 
heir-at-law,  and  asks  for  an  account  validity  of  his  plea  is  determined,  he 
of  the  business  or  particulars  of  the  will  be  protected  from  giving  dis- 
estate.  In  this  case  a  denial  by  an-  coveryconsequent  on  the  allegation." 
swer  would  exclude  the  relief,  but  it  Adams'  Eq.,  marg.  p.  337. 


§§  140,  141.] 


DEFENSES  BY  PLEA.  1^3 


defendant  will  meet  his  claim  by  a  claim  of  release,  and  alleges 
that  the  release  was  obtained  by  fraud.  In  such  case  the  de- 
fendant pleads  aflarmativelythe  release  and  answers  the  alle- 
o-ations  of  the  bill  in  his  plea  by  denying  the  fraud  or  equity 
charged  in  avoidance  of  the  release.  It  is  important  m  this 
class  of  pleas  that  the  defendant  should  set  out  his  case  by  af- 
firmative averments;  as,  for  example,  that  the  release  was 
actually  executed  or  given,  as  well  as  by  denial  of  the  a  ega- 
tions  of  avoidance  contained  in  the  bill  of  complaint  Tho 
term  anomalous  is  applicable  to  such  plea,  because  it  does  not 
tender  an  independent  issue,  but  sets  up  anew  the  impeached 
defense,  with  averments  in  denial  of  the  impeaching  equity 

S  140.  Admissions  by  the  plea.- By  its  very  nature  the  plea 
must  be  held  to  admit  every  well  pleaded  fact  in  the  bill  of 
complaint  which  it  does  not  controvert.  As  we  have  seen,  it 
bases  the  defense  made  by  it  upon  a  single  point  and  there  are 
therefore  but  two  questions  to  be  determined  (1)  Are  he 
allec^ations  of  fact  upon  which  it  depends  true?  (2)  If  the  alle- 
gations are  true,  then  are  they  sufficient  in  law  to  constitu  e  a 
defense  to  the  bill  of  complaint,  or  to  that  part  of  the  bill  to 
which  the  plea  is  aimed?  No  other  questions  are  involved; 
the  defendant  admitting  all  the  allegations  not  controverted 
by  the  plea  contends  that  the  relief  prayed  in  the  bill,  because 
of  the  plea  interposed,  cannot  be  granted. 

In  Hurlhut  v.  Britain'  the  chancellor  said:  "Is  the  plea 
proved^  When  a  replication  is  filed,  the  truth  of  the  plea  is 
the  only  question  to  be  tried,  and,  if  established,  it  is  a  bar  to 
so  much  of  the  bill  as  it  professes  to  cover."  The  admission 
that  is  made  by  the  plea,  however,  is  only  for  the  purpose  o 
the  hearing,  and  if  the  plea  is  controverted  the  court  wil 
allow  the  defendant,  so  far  as  is  equitable  and  for  the  ends  of 
justice,  to  answer  the  bill,  provided  always  that  the  answer 
cannot  be  inconsistent  with  the  allegations  of  the  plea. 

^  141    The  plea  overruled  by  answer.—  The  plea  is  sub- 
stantially a  reason  or  excuse  of  the  defendant  for  not  answer- 

ton  V.  Guyott,  42  Fed.  249.  (N.  Y.),  139. 

2 Walk.   Ch.    (Mich.)  454;    Fish   v. 


184  DEFENSES  BY  PLEA.  [§  142. 

ing  the  bill  of  complaint,  and  so  if  the  defendant  answers  the 
bill  he  waives  the  excuse  for  not  doing  so.  In  Sonzer  v.  Be 
Meyer^  the  chancellor  said:  "It  is  a  well  settled  principle  of 
equity  pleading  that  the  defendant  cannot  plead  and  answer, 
or  plead  and  demur,  as  to  the  same  matter.  If  he  pleads  to 
any  part  of  the  bill,  he  asks  the  judgment  of  the  court  whether 
the  matters  of  the  plea  are  not  sufficient  to  excuse  him  from 
answering  so  much  of  the  bill  as  is  covered  by  the  plea.  There- 
fore, if  he  answers  as  to  those  matters  which  by  his  plea  he 
has  declined  to  answer,  he  overrules  the  plea ;  and  if  he  demurs 
to  any  part  of  the  bill,  and  also  puts  in  a  plea,  which  is  a  spe- 
cial answer  to  the  same  part,  the  demurrer  is  overruled."  And 
so  the  defendant  must  exercise  great  care  in  not  extending  the 
answer,  if  he  is  answering  a  part  of  the  bill,  to  that  part  to 
which  he  has  interposed  a  plea,  for,  if  be  should,  the  answer 
would,  upon  an  argument,  be  held  to  overrule  the  plea.^  This, 
however,  is  to  some  extent  regulated  by  rule  in  the  United 
States  court.  It  is  by  rule  provided  that  "  no  demurrer  or  plea 
shall  be  held  bad  and  overruled  upon  argument,  only  because 
the  answer  of  the  defendant  may  extend  to  some  part  of  the 
same  matter  as  may  be  covered  by  such  demurrer  or  plea." ' 

Because  of  the  equity  rule  the  court,  in  Mercantile  Co.  v.  Mis- 
souri,etc.  R.  Co.,^  held  that  the  plea  would  not  be  stricken  out 
where  it  did  not  go  to  the  whole  bill,  but,  covering  the  same 
ground  as  the  answer,  showed  a  different  ground  of  defense. 

§  142.  Pleas  to  the  relief.— Pleas  which  go  to  the  relief 
sought  may  be  divided  into  two  general  classes: 
First.  Pleas  in  abatement;  and 
Second.  Pleas  in  bar. 

While  this  division  is  not  generally  adopted  by  writers  upon 

1  2  Paige  (N.  Y.),  574,  576.   In  Chad-  are  to  be  answered;  but  on  the  other 

wick  V.  Broadwood,  3  Beav.  309,  Lord  hand,  if  they  are  not  material  for 

Langlade    said:     the    rule  may  be  that  purpose,  you  are  not  to  answer 

stated  thus:    "You  are    to  answer  them,  for  by  so  doing  you  overrule 

everything  charged  in  the  bill  which  your  plea."    Story,  Eq.  PI.,  sec.  688. 

if  true  would  displace  the  plea,  and  2  Brownell  v.  Curtis,  10  Paige  (N. 

this  you  must  do  whether  the  bill  Y),  210;  Bruen  v.  Bruen,  4  Edw.  Ch. 

does  or  does  not  expressly  charge  (N.  Y.)  G40. 

those  matters  to  be  evidence  of  the  '  U.  S.  Eq.  Rule  37. 

facts.    If  they  are  material  for  the  *84  Fed.  379. 
purpose  of  displacing  the  plea,  they 


§  142.]  DEFENSES  BY  PLEA.  185 

this  subject,  it  is  recognized  and  it  seems  to  be  clearly  a  proper 
classification.  Judge  Story  points  out  the  analogy  between 
the  generally  adopted  classification  of  pleas  and  the  classifica- 
tion known  to  the  civil  law,  and  says: '  "  But  the  more  exact 
division   of  exact  division  of  exceptions  is  into  three  kinds: 

(1)  declinatory,  corresponding  to  our  pleas  to  the  jurisdiction; 

(2)  dilatory,  corresponding   to  our  pleas  to  the  person;  and 

(3)  peremptory,  corresponding  to  our  pleas  in  bar ;  qum  jKrirnunt 
jus  actoris.  The  two  former  were  always  put  in  before  the 
suit  was  put  in  contestation,  ante  litem  contestatum;  for  they 
were  before  the  praetor,  as  reasons  why  he  should  not  pro- 
ceed in  the  cause  to  assign  judges  for  his  decision. 

"All  declinatory  and  dilatory  pleas  in  equity  are  properly 
pleas,  if  not  in  abatement,  at  least  in  the  nature  of  pleas  in 
abatement;  and  therefore,  in  general,  the  objections  founded 
thereon  must  be  taken  ante  litem-  contestatum  by  plea,  and  are 
not  available  by  way  of  answer,  or  at  the  hearing.  And  it 
has  been  said  that  pleas  of  these  several  kinds  must  be  success- 
ively pleaded,  one  after  another,  in  their  proper  order;  that 
is  to  say,  first,  declinatory  pleas;  secondly,  dilatory  pleas;  and, 
thirdly,  pleas  in  par.  For,  it  has  been  said,  that  although  no 
man  shall  be  permitted  to  plead  two  dilatories  at  several  times, 
nor  several  bars,  because  he  may  plead  them  all  at  once,  yet, 
after  a  plea  to  the  jurisdiction,  he  may  be  admitted  to  plead 
in  bar;  because  it  is  consistent  with  those  pleas  to  plead  in  bar 
at  the  same  time." 

Daniell  quotes  from  the  discussion  of  some  of  the  other  authors 
and  says:  2  "It  appears  to  be  the  opinion  of  Mr.  Beames  that 
pleas  in  equity  are  primarily  divisible  into :  pleas  in  abatement, 
and  pleas  in  bar.  He  observes  that,  '  in  a  work  on  pleading 
at  law,  pleas  are  thus  described:  Pleas  are  of  two  sorts  —  in 
abatement  and  in  bar;  the  former  question  the  propriety  of 
the  remedy,  or  legal  sufficiency  of  the  process,  rather  than 
deny  the  cause  of  action ;  the  latter  dispute  the  very  cause  of  ac- 
tion itself ;  and  that  it  is  impossible  to  read  this  passage  without 
perceiving  how  perfectly  applicable  it  is  to  pleas  in  equity, 
and  how  strongly  appropriate,  as  marking  the  distinction  be- 
tween pleas  to  the  jurisdiction,  to  the  person,  and  the  bill,  and 

1  Story,  Eq.  PI.  707,  708.  2  i  Danl.  Ch.  PI.  &  Pr.  626. 


186 


DEFENSES  BY  PLEA. 


[§  1^2. 


picas  in  bar.  The  three  former  classes,  while  they  question 
the  propriety  of  the  particular  remedy  or  of  the  suit,  tacitly 
concede  the  existence  of  a  cause  of  suit;  but  the  latter  dispute 
the  very  cause  of  suit  itself."  Lord  Thurlow,  however,  is 
quoted  as  saying  that  he  did  not  know  what  a  plea  in  abate- 
ment in  equity  was,^  but  it  seems  to  have  been  used  in  the 
English  cases  frequently,  and  even  by  Thurlow  himself.^ 


1  Merrewether  v.  Mellish,  13  Ves. 
Jr.  435,  437. 

2  Newman  v.  Wallis,  2  Bro.  C.  C. 
143;  Gun  v.  Prior,  1  Cox,  198.  Story, 
in  note  1,  section  708,  of  his  work  on 
Equity  Pleading,  quotes  Mr.  Beames' 
•work  on  Pleading  in  Equity  (57-60) 
as  follows.  Speaking  of  pleas  in 
equity  of  a  declinatory  and  dilatory 
nature,  he  says:  "In  the  Practical 
Register,  a  plea  to  the  person  is  called 
a  plea  in  abatement  in  equity;  on 
which  it  has  been  remarked  that  the 
propriety  of  this  has  been  much 
doubted,  referring  to  the  passage  in 
Mr.  Vesey's  Reports.  It  is  there 
stated,  'that  the  distinction  between 
pleas  in  abatement  and  pleas  in  bar 
was  very  little  known;  and  that  Lord 
Thurlow  had  said  he  did  not  know 
what  a  plea  in  abatement  in  equity 
was.'  The  Practical  Register  cer- 
tainly uses  the  term  plea  in  abate- 
ment as  a  term  well  known  in  equity; 
and  it  occurs  in  a  number  of  other 
books,  some  of  which  are  of  consid- 
erable reputation.  Lord  Hardwicke, 
in  the  passages  we  have  just  quoted, 
uses  it  as  familiar  to  his  hearers. 
The  attorney-general,  in  the  anony- 
mous case  in  Mosely,  employs  it  in  a 
similar  manner.  And  what  is  more 
remarkable.  Lord  Thurlow  himself 
repeatedly  uses  the  term  'plea  in 
abatement,'  in  contradistinction  to  a 
plea  in  bar,  in  the  cases  of  Newman 
V.  Wallis  and  Gun  v.  Prior,  and 
acknowledges,  as  strongly  as  lan- 
guage can  acknowledge,  the  strong 
lines  of  distinction  between  them. 
It  has  been  said  that  a  plea  in  equity 


to  the  person  is  more  properly  in  the 
nature  of  a  plea  in  abatement  It  is 
not  necessary  to  discuss  this  distinc- 
tion; but  it  may  merely  be  remarked 
that  Lord  Redesdale,  in  speaking  of 
certain  pleas  to  the  person,  describes 
them,  not  as  pleas  in  the  nature  of 
pleas  in  abatement,  but  as  pleas  in 
abatement  of  the  suit.  If  it  be  nec- 
essary to  add  anything  more  on  this 
subject,  it  may  be  observed  that,  in 
a  work  on  pleading  at  law,  pleas  are 
thus  described:  'Pleas  are  of  two 
sorts  —  in  abatement  and  in  bar:  the 
former  question  the  propriety  of  the 
remedy,  or  legal  sufficiency  of  the 
process,  rather  than  deny  the  cause 
of  action;  the  latter  dispute  the  very 
cause  of  action  itself.'  It  is  impos- 
sible to  read  this  passage  without 
perceiving  how  perfectly  applicable 
it  is  to  pleas  in  equity,  and  how 
strongly  appropriate,  as  marking  the 
distinction  between  pleas  to  the 
jurisdiction,  to  the  person,  and  to  the 
bill,  and  pleas  in  bar.  The  three 
former  classes,  whilst  they  question 
the  propriety  of  the  particular  rem- 
edy, or  the  suit,  tacitly  concede  the 
existence  of  a  cause  of  suit.  But  the 
latter  dispute  the  very  cause  of  suit 
itself.  That  the  mere  term,  plea  in 
abatement,  as  contradistinguished 
to  the  term,  plea  in  bar,  is  not  of 
that  familiar  phraseology  in  courts 
of  equity,  or  in  books  relating  to 
their  pleadings,  as  it  is  at  law.  may 
easily  be  conceded.  But  that,  sub- 
stantially speaking,  pleas  in  abate- 
ment are  known  in  equity,  as  well 
as  at  law,  cannot,  I  think,  success- 


§§   143,  144.]  DEFENSES  BY  PLEA,  187 


/ 


First.   Pleas  in  Abatement. 
^  143.  Pleas  in  abatement  defined  and  classified,— Pleas 

in  abatement  are  those  which  do  not  deny  the  cause  of  action 
claimed  and  set  forth  in  the  bill  of  complaint,  but  dispute  the 
power  of  the  court  to  take  cognizance  of  the  cause,  either  be- 
cause of  the  subject-matter  of  the  controversy  or  its  right  to 
hear,  try  and  determine  the  particular  case  made  by  the  bill; 
as,  for  example,  a  plea  to  the  jurisdiction  does  not  dispute  the 
right  of  the  complainant  in  the  subject-matter  of  the  suit,  but 
it  claims  that  the  court  of  equity  cannot  take  cognizance  of 
the  claim  set  up;  or,  admittmg  the  jurisdiction,  claims  that  the 
suit  should  abate  because  the  plaintiti  does  not  possess  a  suffi- 
cient legal  interest  in  the  subject-matter  to  entitle  him  to  pros- 
ecute the  suit.  Or  that  the  right  to  hear,  try  and  determine 
the  cause  is  in  some  other  court  of  equity. 
Pleas  in  abatement  may  be  classified  as:^ 
{a)  Pleas  to  the  jurisdiction. 

(5)  Pleas  to  the  person  of  the  complainant  or  defendant, 
(c)  Pleas  to  the  bill. 
§  144.  (a)  Pleas  to  the  jurisdiction.—  The  objection  that  the 
court  has  no  jurisdiction  to  hear  and  determine  the  cause 
should  be  taken  advantage  of  before  answering  the  bill  of 
complaint  and  going  to  hearing  upon  the  merits,  because,  by 
answering  the  bill  and  going  to  hearing,  jurisdiction  is  con- 
ceded and  the  objection  cannot  be  taken  advantage  of,  except 
it  be  a  case  where  the  court  has  no  jurisdiction  whatever 
under  any  circumstances  that  may  arise.  If  the  court  is  en- 
tirely without  jurisdiction,  such  an  objection  can  be  taken  at 
the  hearing  or  at  any  time  during  the  pendency  of  the  case.^ 

fully  be  disputed.     It  may  be  said  40  Conn.   478,   484,  the    court   say: 

that  at  best  this  is  a  mere  dispute  "  We  do  not  sanction  the  claim  that 

about  terms,  and  that  no  material  the  objection  that  there  is  adequate 

advantage  in  the  elucidation  of  the  remedy  at  law  should  in  all  cases  be 

subject  can  be  derived  from  ascer-  taken  by  a  plea  to  the  jurisdiction, 

taining  whether  pleas  in  abatement,  When  the  legal  remedy  is  obvious, 

in  their  strict  sense,  or  pleas  in  the  and  it  is  apparent  to  the  court  that 

nature  of  pleas  in  abatement,  are  there  is  a  defect  of  power  to  proceed 

known  in  equity."  in  equity,  the  court  may,  of  its  own 

11  Danl.   Ch.  PI.  &  Pr.  626,  627;  motion,  dismiss  the  bill.     When  the 

Story,  Eq.  PI.  707.  708.  question  is  in  doubt,  and  there  has 

2  In  Hine  v.  City  of  New  Haven,  been  a  trial  upon  the  merits,  the 


188  DEFENSES  BY  PLEA.  [§  144. 

If  the  objection  is  apparent  upon  the  face  of  the  bill  it  should 
be  raised  by  a  demurrer;  if  not,  by  plea.  The  objection  that 
the  court  has  no  jurisdiction  may  arise  from  three  reasons:' 

(1)  That  the  causae  of  action  set  vp  in  the  Mil  is  not  within  the 
equitable  jurisdiction^  either  exGhisive,  concurrent  or  auxiliary. 
As,  for  example,  it  may  be  a  case  of  a  purely  legal  right  with  a 
purely  legal  remedy,  one  for  which  the  equity  court  has  no 
remedy.  This  plea  does  not  claim  that  the  plaintiff  has  no  rights 
to  be  redressed  or  that  he  has  no  remedy,  but  urges  that  there 
is  no  remed}'^  known  to  the  court  of  equity  which  can  be  applied 
to  the  case  made  by  the  bill. 

(2)  TJiat  the  case  made  is  an  equitable  one  ;  that  the  parties 
have  the  right  to  litigate  in  a  court  of  equity^  but  that  they  have 
no  right  to  litigate  in  this  particular  court  where  the  bill  is  filed. 
As,  for  example,  where  the  bill  is  filed  in  the  United  States 
court,  claiming  jurisdiction  because  of  the  allegation  that  the 
parties  complainant  and  defendant  are  residents  of  different, 
states,  the  defendant  can  plead  to  the  jurisdiction  of  the  court, 
alleging  in  his  plea  and  showing  by  proof  that  the  parties  are 
not  residents  of  different  states,  but  of  the  same  state.^  And  so 
any  other  fact  necessary  to  confer  jurisdiction  alleged  in  the 
bill  may  be  controverted  by  a  plea. 

(3)  That  the  case  made  is  an  equitable  one.,  am,d  the  parties 
Jiave  the  right  to  litigate  in  the  equity  court  but  not  in  the  court 
v)here  the  bill  was  filed,  for  the  reason  that  there  vms  at  the  time 
of  the  filing  of  the  bill  another  suit  pending  in  the  same  or 
another  court  between  the  same  parties  for  the  same  subject-mat- 
ter which  will  fully  settle  the  controversy  between  the  parties.  It 
is  a  rule  of  pleading,  generally  applying  to  pleas  in  abatement, 
that  the  defendant  must  give  to  the  plaintiff  a  better  plea,  and 
it  seems  that  this  rule  applies  where  objection  is  made  to  the 
jurisdiction. 

In  an  early  case  in  the  English  court.  Earl  of  Derby  v.  Duke 
of  Athol^  this  question  was  discussed  and  the  rule  laid  down. 

court  will  not,  of  its  own   motion.  Vt.  470;  Emerson  v.  Western  Union 

dismiss  the  bill  for  that  cause,  nor  Ry.    Co.,    75  111.    176;    Campbell    v. 

will  the  objection,  then  taken    for  Crawford,  63  Ala.  393. 

the  first  time  by  the  respondent,  be  2  Sharon  v.  Hill,  26  Fed.  337. 

regarded  with  favor."    Chipman  v.  ^  1  Ves.  Sen.  203;  Beames'  Treatise 

■City  of  Hartford,  21  Conn.  488.  on  Pleas  in  Equity,  89,  90. 
1  Bank  v.  Rutland,  etc.  Ry.  Co.,  28 


§  145.] 


DEFENSES  BY  PLEA.  189 


The  chancellor  said:  "Ami  the  rule  is  insisted  on  that  who- 
ever pleads  to  the  jurisdiction  of  one  of  the  king's  superior 
courts  of  general  jurisdiction  must  show  what  other  court  has 
jurisdiction.  I  am  of  that  opinion;  and  that  for  the  want 
thereof  the  plea  is  bad  and  ought  not  to  be  allowed  if  nothing 
more  is  in  the  case;  as  it  is  expressly  laid  down  and  agreeable 
to  the  general  rule  of  pleas  of  this  sort,  as  in  the  pleas  of 
abatement,  wherein  it  must  be  shown  the  plaintiff  may  have 
a  better  writ.  The  reason  of  this  is  that,  in  suing  for  his  right, 
a  person  is  not  to  be  sent  everywhere  to  look  for  a  jurisdic- 
tion, but  must  be  told  what  other  court  has  jurisdiction;  or 
what  other  writ  is  proper  for  him;  and  this  is  a  matter  of 
which  the  court  where  the  action  is  brought  is  to  judge." 

§145.  (b)  Pleas  to  the  person.— (1)  To  the  party  complain- 
ant    As  we  have  seen,'  the  parties  to  the  bill  must  be  the  real 
parties  in  interest,  and  so  a  person  who  has  no  interest  in  the 
subject-matter  of  the  controversy  cannot  be  a  party  complain- 
ant.    The  person  having  the  real  beneficial  interest  in  the  sub- 
ject of  the  suit  must  file  the  bill.     So,  an  assignor  cannot  file 
a  bill  in  the  interest  of  the  assignee,  nor  can  the  president  of 
a  corporation  bring  an  action  upon  a  contract  or  interest  be- 
longing to  the  corporation.     And  where  the  person  who  ])0S- 
sess'es  the  real  interest  is  under  legal  disability,  as  an  infant 
or  married  woman,  an  idiot  or  insane  person,  the  bill  can  only 
be  filed  by  proper  persons  in  their  behalf.     Should  this  inca- 
pacity appear  upon  the  face  of  the  bill,  the  defendant  may 
raise  the  question  by  demurrer;  if  it  does  not  so  appear  but 
actually  exists,  it  may  be  met  by  plea.    A  plea  in  equity  raises 
an  issue  of  fact  to  be  determined  by  evidence  adduced  by  the 
parties  to  the  suit;  therefore  it  is  a  requisite  attaching  to  pleas 
that  the  objection  raised  shall  be  clearly  and  concisely  stated 
bv  the  defendant,  giving  to  the  complainant  the  benefit  of  the 
objection  made.   '  And  it  has  been  held  that  where  the  defend- 

^Ante    §§  51-55.     In  Wallace    v.  be  allowed.     The  complainant  has 

Dunning,  Walk.  Ch.  (Mich.)  416,  the  put  himself  out  of  court  by  parting 

complainant,  before  the  answer  was  with  his  interest  in  the  mortgage, 

filed  and  after  filing  his  bill,  assigned  Defendant  has  a  right  to  object  that 

all  his  interest  in  the  mortgage  that  the  party  in  interest  is  not  before 

he  was  seeking  to  foreclose,  and  the  the  court."    Mills  v.  Hoag,  7  Paige 

defendant  filed  a  plea  statmg  that  Ch.  18;  Field  v.  Maghee.  5  Paige  Ch. 

fact.  The  court  say:  "The  plea  must  539. 


190  DEFENSES  BY  PLEA.  [§  145. 

ant  objected  by  plea  in  abatement  that  the  complainant  was 
at  the  time  of  the  commencement  of  the  suit  nc/n  compos  men- 
tis, and  therefore  incapable  to  sue,  but  failed  to  allege  that  he 
had  been  so  found  by  proper  authority,  the  plea  was  held  to 
be  bad.  The  court,  in  its  opinion,  said: ^  "The  proper  prac- 
tice in  such  a  case  is  by  an  application  to  the  court  to  strike 
the  bill  from  the  files  because  it  has  been  filed  without  author- 
ity, owing  to  the  mental  incapacity  of  the  complainant,  or  to 
apply  for  a  stay  of  proceedings  until  a  committee  or  next 
friend  may  be  appointed.  The  court  can  then  ascertain  whether 
there  is  any  reasonable  foundation  for  suspending  the  progress 
of  the  suit.  It  would  be  intolerable  to  permit  a  defendant, 
whenever  so  disposed,  to  challenge  the  mental  capacity  of  a 
complainant  by  a  plea,  and  the  practice  might  lead  to  grave 
abuses."  Xot  only  may  want  of  capacity  in  the  plaintiff  to 
sue  be  made  the  subject  of  a  plea  in  abatement,  but  a  want  of 
title  to  the  character  assumed  in  the  bill  of  complaint  may  be 
met  by  plea.  As,  for  example,  if  the  plaintiff  files  his  bill  as 
an  executor  or  administrator  of  an  estate,  and  he  does  not 
possess  the  character  assumed,  it  not  appearing  upon  the  face 

1  Dudgeon  v.  Watson,  23  Fed.  161.  ^o  made  it  cannot  now  be  consid- 
HoTt  v.°Hoyt.  58  Vt.  5^8.  held  that:  ered."  iMitf.  Eq.  PL  184;  1  Danl.  Ch. 
-Objections  to  the  competency  of  a  Pr-  5--S4;  Story.  Eq.  PI.,  sec.  725. 
party  to  maintain  a  suit  are  in  the  I^  Ines  v.  Evans,  3  Edw.  Ch.  (N.  Y.) 
nature  of  pleas  in  abatement  of  the  4:54,  where  it  was  held  that  a  naked 
process,  and,  viewed  in  that  light,  it  negative  plea  was  not  sufficient  to 
is  obvious  that  the  objection  should  deny  a  partnership  where  the  bill 
be  presented  as  a  preliminary  ques-  stated  an  agreement,  which  was  not 
tion,  so  that  it  may  be  disposed  of  denied,  that  the  complainants  were 
before  the  parties  are  put  to  ex-  respectively  to  have  a  certain  per- 
l^ense  in  further  litigation.  If  it  centage  or  share  of  the  net  profits  of 
appear  upon  the  face  of  the  bill  that  the  business,  the  court  holding  in 
the  orator  is  incapable  of  instituting  that  case  that  such  an  agreement 
the  suit,  the  defendant  may  demur;  might  not  constitute  a  partnership 
but  if  the  incapacity  does  not  so  ap-  inter  se,  and  therefore  the  plea  might 
pear  the  defendant  must  take  advan-  be  true  and  yet  the  complainants 
tage  of  it  by  plea.  In  Wade  v.  Pul-  might  be  entitled  to  an  account  of 
sifcr,  54  Vt.  45,  it  was  held  that  the  the  profits  of  the  business  upon  fciie 
objection  of  multifariousness  must  footing  of  the  agreement  for  com- 
be taken  by  demurrer  and  could  not  pensation  for  their  services;  that  to 
be  made  by  answer.  The  objection  me:;t  the  question  the  plea  should 
to  the  competency  of  the  orator  have  met  the  case  made  by  the  bill 
should  have  been  made  by  plea  and  and  denied  the  agreement  in  order 
before  answer;  and  not  having  been  to  be  sufficient. 


§  145.]  DEFENSES  BY  PLEA.  191 

of  the  bill,  the  question  may  be  raised  by  a  plea  in  abate- 
ment.^ 

(2)  To  the  party  defendant.  We  have  already  discussed  to 
some  extent  in  previous  sections  who  may  be  made  parties  de- 
fendant in  the  equity  bill.^  A  defendant  must  have  an  inter- 
est in  the  subject-matter  of  the  controversy  which  would  at 
least  make  him  liable  to  the  demands  of  the  plaintiff.  And 
where  one  is  made  a  defendant  who  has  not  such  an  interest 
■in  the  subject-matter  as  would  support  a  decree,  that  fact  ap- 
pearing upon  the  face  of  the  bill  would  render  the  bill  liable 
to  a  demurrer,  or  existing,  but  not  appearing  upon  the  face  of 
the  bill,  to  a  plea. 

In  Plummer  v.  May '  a  bill  was  brought  by  an  heir  at  law 
ao-ainst  the  subscribino:  witness  to  discover  the  circumstances 
of  the  execution  of  a  will.  The  lord  chancellor  in  rendering 
the  opinion  said:  "The  principle  is  right  that  you  cannot  make 
one  a  defendant  to  a  bill  who  is  merely  a  witness,  in  order  to 
have  a  discovery  of  what  he  can  say  to  the  matter,  though  he 
is  properly  examinable  as  a  witness;  which  would  be  very  mis- 
chievous and  give  an  opportunity  to  collect  evidence  any  way 
to  contradict  and  encounter  that;  and  if  that  was  barely  the 
present  case,  I  should  at  once  allow  the  demurrer.  But  as 
against  a  party  interested,  the  plaintiff  is  entitled  to  have  a 
discovery  from  him,  if  he  is  charged  to  be  concerned  in  the 
fraud  in  obtaining  it;  and  it  is  not  his  being  made  a  witness 

1  Simons  v.  Milman,  2  Simon's  Ch.  accouple  —  that  is  to  say,  a  plea  that 
241;  Roberts  v.  Madocks.  16  Simon's  the  plaintiff  and  her  supposed  hus- 
Cli.  55.  "  So.  where  a  plaintiff  en-  band  were  never  lawfully  joined  in 
titled  himself  as  administrator  in  the  matrimony  —  would  be  a  good  plea, 
bill,  a  plea  that  the  supposed  intes-  So.  to  a  bill  brought  by  an  executor 
tate  was  living  was  held  good.  So,  before  probate  of  the  will,  a  plea 
a  plea  to  a  bill  by  a  plaintiff,  claim-  that  the  will  has  not  been  proved 
ingas  heir,  that  the  plaintiff  is  not  would  be  good.  So,  if  a  feme  covert 
heir,  has  been  held  good.  So,  if  a  should  sue  alone  in  her  own  name, 
plaintiff  should  sue  as  a  partner,  a  the  coverture  may  be  pleaded  in 
pea  that  he  is  not  a  partner  would  abatement.  So,  a  plea  that  the  plaint- 
be  good.  So,  to  a  bill  by  a  plaintiff,  iff,  or  one  of  the  plaintiffs,  is  a  ficti- 
as  a  creditor  of  an  estate,  a  plea  that  tious  person,  or  was  dead  at  the  com- 
be is  not  a  creditor,  and  that  the  de-  mencement  of  the  suit,  would  be  a 
ceased  was  not  indebted  to  him,  good  plea  in  abatement  of  the  suit."" 
would  be  good.  So,  if  a  person  should  Story,  Eq.  PL,  sec.  727. 
sue  as  plaintiff,  in  the  character  of  a  -Ante,  %%  56.  57,  58. 
widow,  for  dower,  a  plea  oine  unqucs  ^  1  Ves.  Sen.  426. 


192  DEFENSES  BY  PLEA.  [§  146. 

that  will  prevent  this  discovery."  '  And  where  the  bill  has 
been  filed  against  a  person  whom  it  alleges  is  an  executor  or 
administrator,  or  described  as  one  occupying  a  certain  relation 
which  he  does  not  sustain,  in  such  case  it  would  be  a  good  plea 
that  the  defendant  does  not  bear  the  character  which  is  al- 
leged in  the  bill.  The  like  rule  will  apply  to  a  defendant  who 
had  become  a  bankrupt  before  the  suit  brought,  all  his  inter- 
ests in  the  subject  having  passed  to  his  assignee. 

§  146.  (c)  Pleas  to  the  bill. —  These  pleas  do  not  question 
the  jurisdiction  of  the  court,  or  the  right  of  the  parties  com- 
plainant to  bring  the  action,  or  the  liability  of  the  defendant 
as  claimed  in  the  bill,  but  contend  that  the  particular  bill  can- 
not be  sustained,  and  cannot  support  a  decree,  for  the  reason, 
(1)  that  there  is  another  suit  pending  in  a  court  of  equity  for 
the  same  subject-matter;  (2)  that  the  bill  is  defective  for  want 
of  proper  parties;  (3)  that  the  bill  filed  institutes  an  action 
based  upon  only  a  portion  of  the  subject-matter  of  the  con- 
troversy; (4)  that  the  bill  is  multifarious  in  that  it  joins  distinct 
matters  in  one  suit. 

(1)  That  there  is  another  suit  pending  in  a  court  of  equity /"or 
the  same  subject-matter.  This  plea  is  analogous  to  the  plea  in 
common-law  courts  of  another  action  pending.  It  must  show 
the  pendency  of  the  former  case;  in  what  court  it  was  com- 
menced and  is  now  being  carried  on;  its  general  nature  and 
the  relief  prayed ;  that  it  is  for  the  same  subject-matter,  and 
that  the  bill  is  filed  for  the  same  object;  that  the  relief  prayed 
for  in  the  former  suit  is  the  same  as  in  the  bill  to  which  the 
plea  is  interposed,  and  if  granted  will  meet  the  purpose  for 
which  the  bill  is  filed.  It  is  not  requisite  that  the  former  case 
be  between  preciseh''  the  same  parties,  for  there  may  have 
been  transfers  of  interest  since  the  filing  of  the  former  bill. 
If  the  bill  is  founded  upon  the  same  equity,  brought  by  the 
same  person  or  his  representatives,  or  persons  claiming  under 
him,  and  for  the  same  right,  praying  for  the  same  relief,  the 
plea  will  be  sustained. 

In  Griffiiig  v.  Griffing  Iron  Co?  the  court  say :    "  A  plea  of 

iMitf.    Eq.    PI.,    by  Jeremy,  235;  Ewen  v.  Broadhead,  11  N.  J.  Eq.  129. 

Coop.  Eq.  PL,  sec.  250;  Story,  Eq.  PI.  The  defendant  in  pleading  the  pend- 

734.  ency  of  a  former  suit  may  content 

261  N.  J.  Ch.  269,  48  Atl.  910;   Mc-  himself  with  stating  the   pendency 


§   140.]  DEFENSES  BY  PLEA.  193 

this  sort  was  formerly  required  to  expressly  aver  that  another 
suit  for  the  same  matter,  to  the  same  effect,  and  for  like  relief, 
was  still  pending  in  some  court  of  equity.  Such  a  general 
averment  would  doubtless  be  now  sufficient.  A  plea  with 
only  general  averment  of  this  sort  could  not  be  safely  replied 
to,  and  the  practice  was  to  refer  it  to  a  master  to  report 
whether  the  two  suits  were  for  the  same  matter,  and  whether 
the  first  suit  was  yet  pending.  When  such  a  plea  is  set  down 
for  argument,  and  the  proceedings  of  the  former  suit  are  ex- 
hibited before  the  chancellor,  either  by  the  averments  of  the 
plea  or  otherwise,  he  may  determine  the  matter  without  the 
delay  of  a  reference.  It  has,  however,  been  settled  in  this 
state  that  the  express  averment  that  the  two  suits  are  for  the 
same  subject-matter  need  not  appear  in  the  plea,  provided 
that  it  states  facts  that  clearly  indicate  that  they  are  so.  The 
plea  before  me  does  not  expressly  aver  that  the  pending  suit 
which  it  describes  is  for  the  same  matter  as  is  the  subject  of 
this  bill.  It  is,  then,  requisite  to  examine  with  care  the  aver- 
ments of  the  plea  to  discover  whether  its  description  of  the 
former  and  pending  suit  is  clearly  shown  thereby  to  be  for  the 
same  subject-matter.  Here  it  is  to  be  noticed  that  the  present 
suit  seeks  no  decree  against  the  defendant  which  has  inter- 
posed this  plea;  yet  it  is  obvious  that  the  relief  sought  will,  in 
fact,  affect  that  defendant.  If,  therefore,  it  can  show  that  the 
relief  sought,  so  far  as  it  affects  it,  has  been  sought  directly 
from  it  in  a  suit  still  pending,  it  seems  that  such  a  defendant 
may  interpose  the  bar  of  a  pending  suit." 

The  question  whether  another  suit  pending  in  a  court  of  law 
for  the  same  subject-matter  is  an  objection  that  can  be  taken 
advantage  of  by  a  plea  has  been  more  or  less  discussed  by  the 
courts  and  the  writers  upon  this  subject,  and  it  has  been  laid 
down  as  an  established  rule  that  such  a  plea  is  barred  and  un- 
available in  equity.!  It  is  difficult  to  understand  how  such  a 
condition  could  exist,  for  certainly  if  upon  the  face  of  the  bill 
it  should  appear  that  the  action  in  the  law  court  would  give 

and  object  of  the  former  suit,  and  2  Danl.  Ch.  PL   &   Pr.   660;    Story, 

aver    that    the     present    suit    was  Eq.  PI,  sec.  743;  Meeker  v.  Marsh. 

broue;ht  for  the  same  matter.     Davi-  1  N.  J.  Eq.  198,  202;  Da  Costa  v.  Dib- 

son's  Ex'rs  v.  Johnson.  16  N.  J.  Ch.  ble,  40  Fla.  418,  24  So.  911. 

112,  114;  s  Danl.  Ch.  PL  &  Pr.  20-o'0;  i  Story,  Eq.  PL,  sec.  742. 
13 


194 


DEFENSES  BY  PLEA. 


[§  146. 


full  and  complete  remedy  to  the  parties,  the  bill  would  be  sub- 
ject to  a  demurrer,  for  the  equity  court  would  have  no  jurisdic- 
tion, and  necessarily  the  case  set  forth  in  the  bill  would  deter- 
mine whether  the  object  and  purpose  of  the  equity  case  was 
the  same  and  would  result  in  the  same  relief.  If  the  merits 
of  the  equity  case  could  not  be  tried  and  determined  in  the 
law  case  —  if  a  further,  broader,  and  more  complete  relief  could 
be  given  by  the  equity  case  than  could  be  given  the  parties  in 
the  law  action,— then  the  court  would  not  permit  the  equity 
bill  to  be  set  aside  or  superseded  by  the  law  case,  for  m  such 
case  the  action  and  object  of  the  action  could  not  be  said  to  be 
the  sarae.^ 


1  A  case  that  would  seem  to  illus- 
trate this  question  to  some  extent 
is  that  of  John  Hancock  Ins.  Co.  v. 
Dick,  114  Mich.  337,  where  the  su- 
preme court  of  Michigan  refused  to 
sustain  a  demurrer  for  want  of  equity, 
and    because    there    was    adequate 
remedy  at  law   in   a  suit   pending 
upon   an    insurance   policy,   and  in 
which  the  parties  had  joined  issue, 
grounding  the  refusal  upon  the  prin- 
ciple that  complainant  prayed  in  the 
bill  not  only  to  be  relieved  of  pay- 
ment of  the  policy,  but  that  it  be  de- 
livered up  for  cancellation,  and  the 
receipts  reinstating  the  policy  be  de- 
livered up.   The  court  say:  "  There  is 
no  doubt  that  the  alleged  fraud,  if 
proved,  should  defeat  the  claim  of 
the  plaintiff  to  any  sum  beyond  the 
paid-up  value    of  the   policy   in    a 
court  of  law.     Such  court  could  not, 
however,    have    canceled    or    com- 
pelled the  surrender  of  the  renewal 
receipt,  though  there  is  force  in  the 
suggestion    that  such    cancellation 
would  be  of  little  importance  after 
an  adjudication  that  it  was  void.    It 
is  urged  that  the  case  falls  within 
the  general  rule  that  equity  has  no 
jurisdiction  where  there  is  an  ade- 
quate   remedy    at    law,    especially 
when  the  latter  l.as  been  resorted' to 
by  the  opposite  party.     Counsel  for 


defendant  cites  two  cases  decided  by 
the  federal  courts,  which  sustain  his 
contention,  under  circumstances 
closely  resembling  the  situation  in 
this  casa  These  decisions  are  based 
upon  the  sixteenth  section  of  the 
federal  judiciary  act,  which  provides 
that  'suits  in  equity  shall  not  be 
sustained  in  the  courts  of  the  United 
States  in  any  case  where  a  plain, 
adequate  and  complete  remedy  may 
be  had  at  law.'  Rev.  Stat.  U.  S.,  sec. 
723.  We  have  no  similar  statute,  and 
we  are  cited  to  several  cases  which 
sustain  the  jurisdiction  of  chancery, 
even  after  action  at  law  is  com- 
menced." Insurance  Co.  v.  Bailey. 
13  Wall.  (U.  S.)  616;  ^Etna  Life  Ins. 
Co.  v.  Smith,  73  Fed.  318. 

The  pendency  of  a  suit  in  a  foreign 
court,  or  in  the  court  of  the  United 
States,  it  has  been  held,  cannot  be 
pleaded  in  abatement,  or  in  bar  to  a 
suit  for  the  same  cause,  in  a  state 
court.  Mitchell  v.  Bunch,  2  Paige 
Ch.  606;  Hatch  v.  Spofford,  22  Conn. 
485,  495.  And  a  pendency  of  a  prior 
suit  at  law  in  a  state  court  has  been 
held  not  to  be  a  bar  to  a  suit  in  the  cir- 
cuit court  of  the  United  States,  or  in 
the  supreme  court  of  the  District  of 
Columbia,  by  the  same  plaintiff 
against  the  same  defendant  for  the 
same  cause  of  action.     Stanton  v. 


§  146.]  DEFENSES  BY  PLEA.  195 

(2)  That  the  hill  is  defective  for  want  of  proper  parties. 
It  has  been  often  said  that  the  court  of  equity  seeks  to  do  full 
and  complete  justice  and  settle  in  the  one  pending  suit  the 
entire  controversy  between  the  parties;  to  accomplish  this,  all 
persons  whom  the  decree  of  the  court  would  in  any  way 
legally  and  materially  affect  must  be  before  the  court  that 
they  may  be  subjected  to  its  decree.  If  upon  the  face  of  the 
bill  it  is  apparent  that  there  are  such  interested  persons  who 
are  not  made  parties  to  the  bill,  the  objection,  as  we  have 
seen,  may  be  taken  by  demurrer;  but  if  it  does  not  so  appear, 
and  the  facts  can  be  shown  to  the  court  by  proof,  the  defend- 
ant may  raise  the  question  by  a  plea  of  want  of  necessary  par- 
ties.^ "Although  a  plaintiff  may  be  fully  entitled  to  the  relief 
he  prays,"  says  Judge  Story,  "  and  the  defendant  may  have 
no  claim  to  the  protection  of  the  court,  which  ought  to  pre- 
vent its  interference,  yet  the  defendant  may  object  to  the  bill, 
if  it  is  deficient  to  answer  the  purposes  of  complete  justice. 
This  is  usually  for  want  of  proper  parties;  and,  if  the  defect  is 
not  apparent  on  the  face  of  the  bill,  the  defendant  may  plead 
the  matter  necessary  to  show  it.  A  plea  of  the  want  of  par- 
ties goes  both  to  discovery  and  relief,  where  relief  is  prayed, 
although  the  want  of  parties  is  no  objection  to  a  bill  for  a  dis- 
covery merely."  * 

In  Case  v.  Minot^  the  court  say:  "  The  objection  of  want  of 
parties,  when  taken  by  plea  or  answer,  should  give  the  names 
of  the  necessary  parties  where  this  can  be  done,  and  especially 
where  it  is  peculiarly  within  the  knowledge  of  the  defendants." 

(3)  That  the  hill  fled  institutes  an  action  hased  upon  only  a 
portion  of  the  snl)ject-matt€r  of  the  controversy.  This  involves 
the  question  of  multiplicity  of  suits,  which  the  court  of  chancery 

Embrey,  93  U.  S.  548;  Smith  v.  Lath-  29  Fed.  722;  Parker  v.  Parker,  Walk, 

rop.  44  Pa  St.  326, 328 ;  Oneida  County  Ch.  (Mich.)  457. 

Bank  v.  Bonney,  101  N.  Y.  173;  Hoi-  «  Story,  Eq.  PI.,  sec.  745. 

lister  V.  Stewart,  111  N.  Y.  644;  Rueg-  3  158  Mass.  577,  587;  Story,  Eq.  PI., 

ger  V.  Indianapolis,  etc.  Ry.  Co.,  103  sees,  236,  238,  543;  Merreweather  v. 

Ill  449;  Pierce  v.  Feagans,  89  Fed.  Mellish,  13   Ve&  Jun.  435;  Cook   v. 

587.   Thependency  of  asuitinequity  Mancius,  3  Johns.  Ch.  427.     In  At- 

has   been  held  not  generally  good  torney-General   v.  Jackson,  11   Ves. 

ground  for  a  plea  in  abatement  to  an  Jun.  365,  held,  that  it  was  not  neces- 

action  at  law.   Mattel  v.  Conant,  156  sary  to  name  the  parties  if  they  are 

Mass.  418.  so  described  as  to  enable  the  plaintiff 

1  Ante,  §§  48, 114;  Howth  v.  Owens,  to  make  them  partiea 


196  DEFENSES  BY  PLEA.  [§   ^4:7. 

abhors,  and  so  it  is  a  general  rule  that  a  court  of  equity  will 
not  allow  the  splitting  of  causes  of  action;  and  where  it  is  ap- 
parent upon  the  face  of  the  bill  that  the  bill  filed  does  not  em- 
brace the  whole  subject-matter  in  controversy,  but  only  a  por- 
tion of  it,  it  will  be  subject  to  demurrer;  and  if  it  does  not 
appear  upon  the  face  of  the  bill,  but  is  thus  deficient,  it  will  be 
the  subject  of  a  plea.  This  subject  has  already  been  fully  dis- 
cussed.^ 

(4)  That  the  hill  is  multifarious  in  that  it  joins  several  dis- 
tinct matters  in  one  suit.  Multifariousness  has  already  been 
discussed.2  Generally  this  defect  will  appear  upon  the  face  of 
the  bill,  and  in  such  case  the  advantage  may  be  taken  by 
demurrer;  but  if  the  bill  is  so  ingeniously  drawn  that  the  de- 
fect is  hidden  and  cannot  be  taken  advantage  of  by  a  demurrer, 
it  may  be  raised  by  a  plea  to  the  bill  setting  forth  the  facts 
which  necessarily  show  the  court  that  the  bill  is  multifarious 
in  that  it  joins  and  confounds  several  distinct  matters  in  the 
same  bill. 

Second.  Pleas  hi  Bar. 

§  147.  Nature  and  definition.— Whenever  it  can  be  shown 
that  there  is  no  right  claimed  by  the  plaintiff  in  his  bill  that 
can  be  made  the  subject  of  an  equitable  action,  or  that  there 
is  some  existing  fact  which  is  a  complete  and  perpetual  bar  to 
the  right  claimed  in  the  bill,  advantage  may  be  taken  of  it  by 
a  plea  in  bar.  A  plea  in  bar  is  one  which  interposes  some 
salient  all-governing  objection  to  the  bill  of  complaint  and  the 
case  made  by  it  which  completely  and  perpetually  bars  the 
action.  "Whatever  destroys  the  plaintiff's  suit  and  disables 
him  forever  from  recovering  may  be  pleaded  in  bar."'  The 
averments  of  the  plea  must  be  positive  and  distinct,  and  clearly 
show  that  the  plea  is  a  complete,  equitable  and  legal  bar  to  the 
case  made  by  the  bill.*     These  pleas  raise  no  question  as  to  the 

^  Ante,  §   113;   Story,  Eq.  PL  746.  of  sufficient  parties,  since  its  tend- 

'' The  plea  of  viultiplicity  of  suits,  ency  is  to  multiply  the  litigation." 

This  objection  also  may  be  taken  by  2  Ante,  §  39. 

way  of  plea,  for  it  is  against  the  s  Beames  on  Pleadings,  160;  1  DanL 

whole  policy  of  courts  of  equity  to  PI.  &  Pr.  638. 

encourage  multiplicity  of  suits.     In-  ♦McCloskey   v.  Barr,  38   Fed.  165. 

deed,    this    constitutes     one     main  A  plea  may  be  set  aside  if  it  does  not 

ground  of  the  objection  of  the  want  set  up  a  bar  to  every  equitable  claim 


§§  148-150.]  DEFENSES  BY  PLEA.  197 

jurisdiction  of  the  court,  nor  as  to  the  parties  plaintiff  or  de- 
fendant, or  their  claim  of  interest  in  the  subject-matter,  or  the 
liability  of  the  defendant  to  the  complainant;  but  the  ques- 
tion is  one  arising  because  of  additional  or  other  circumstances 
which  are  set  out  in  the  plea  and  claimed  to  be  a  complete  bar 
to  the  relief  or  assistance  prayed  for  in  the  bill  of  complaint. 

§  148.  Pleas  in  bar  are  of  three  kinds.— The  general  classi- 
fication of  pleas  in  bar  is  dependent  on  the  facts  relied  upon 
as  a  bar  to  the  action,  and  is  as  follows: 

First.  Pleas  founded  upon  some  bar  created  by  statute. 

Second.  On  matters  of  record. 

Third.  On  matters  in  pais} 

First.  Pleas  Founded  Upon  Some  Bar  Created  hy  Statute. 

§  UO.  Pleas,  how  divided.—  Pleas  in  bar  founded  upon  some 
bar  created  by  statute  are  subdivided  into: 

(a)  Pleas  of  the  statute  of  limitation. 

(5)  Pleas  of  the  statute  of  frauds. 

(c)  Pleas  founded  upon  any  statute,  private  or  public,  which 
may  be  a  bar  to  the  action. 

§  150.  (a)  Pleas  of  the  statute  of  limitation.— When  the 
equitable  interest  claimed  in  the  bill  rests  upon  some  legal  right 
which  is  limited  by  statute,  the  complainant  must  bring  his 
case  within  the  time  allowed  by  the  statute,  and  if  he  fails  to 
do  so  the  defendant  will  have  a  complete  defense,  either  by 
demurrer  if  the  facts  appear  upon  the  face  of  the  bill,  or  by 
plea  or  answer  if  they  do  not  so  appear.  As,  for  example, 
where  by  statute  it  was  provided  that  an  execution  might  be 

alleged  in  the  bill  Piatt  v.  Oliver,  1  Cooper  (Eq.  PL  251)  and  of  Mr. 
McLean  (U.  S.),  295,  Fed.  Cas.  11,114.  Beames  (PI.  in  Eq.  159.  160);  and  I 
"  A  plea  in  equity,  in  order  to  consti-  have  followed  it  as  preferable  to  that 
tute  a  bar  to  the  complainant's  whole  of  Lord  Redesdale,  who  has  divided 
right  of  action,  must  aver  every  fact  them  into  (1)  Pleas  of  matters  re- 
essential  to  make  out  a  complete  de-  corded,  or  as  of  record  in  the  court 
fense."  Mount  v.  Manhattan,  etc.,  itself,  or  of  some  other  court  of 
41  N.  J.  Eq.  211;  McEwen  v.  Broad-  equity;  (2)  Pleasof  matters  of  record, 
head,  11  N.  J.  Eq.  129;  Davison's  or  matters  in  the  nature  of  matters 
Ex'rs  V.  Johnson,  ICE.  Green  (N.  J.),  of  record  of  some  other  court,  not  a 
112_  court  of  equity;  and  (3)  Pleas  of 
1  Story,  Eq.  PL,  sees.  749, 750.  Judge  matters  in  pais,  Mitf.  Eq.  PL,  by 
Story,  in  note  3  of  section  749,  says:  Jeremy,  236." 
♦•This    is    the    distribution    of    Mr. 


198  DEFENSES  BY  PLEA.".  [§  151. 

levied  upon  an  equitable  interest  in  lands,  and  upon  lands  con- 
veyed to  defraud  creditors,  but  required  the  judgment  cred- 
itor to  proceed  within  a  year  and  institute  proceedings  to 
ascertain  and  determine  the  rights  and  equities  of  the  judg- 
ment debtor,  it  was  held  that  the  complainant,  not  proceeding 
within  the  time  limit  of  the  statute,  lost  all  right  to  enforce 
his  lien.*  And  where  the  statute  limited  the  time  within 
which  a  foreclosure  proceeding  could  be  commenced  to  fifteen 
years  after  the  mortgage  became  due,  or  after  the  last  pay- 
ment was  made,  it  was  held  that  the  bill  for  foreclosure,  not 
havino-been  filed  within  the  time,  should  be  dismissed.*  "No 
principle  of  law  is  better  settled  than  that  where  the  law 
affords  a  remedy  and  the  party  neglects  to  avail  of  it,  equity 
will  not  assist  him  after  his  rights  have  been  barred  by  the 
statute  of  limitations."  ^ 

In  the  case  oi  Ka7\e  v.  Bloodgood^  the  chancellor,  in  discuss- 
ing the  authorities  applicable  to  this  principle,  in  cases  of  trusts 
barred  by  the  statute  of  limitations,  said :  "  That  as  to  those  other 
trusts  (that  is,  trusts  within  the  cognizance  of  a  court  of  lawj 
which  are  the  ground  of  an  action  at  law,  the  statute  is,  and 
in  reason  ought  to  be,  as  much  a  bar  in  the  one  court  as  in  the 
other." 

In  earlier  times  the  statutes  of  limitation  were  confined  to 
actions  at  law,  but  the  courts  of  equity,  recognizing  the  limita- 
tions fixed  by  the  several  statutes  as  reasonable  and  expres- 
sive of  what  would  equitably  be  diligence  and  good  faith  in 
the  premises,  generally  followed  them  in  cases  to  enforce 
equitable  titles  to  real  estate  and  personal  claims;  latterly, 
however,  in  most  of  the  states  the  statutes  are  made  especially 
applicable  to  equity  as  well  as  law. 

§  151.  Laches. —  It  is  a  maxim  in  equity  that  "Equity  aids 
the  vigilant,  not  those  who  slumber  on  their  rights,"  and  as 
applied  to  this  subject  it  may  be  said  to  partake  of  the  equi- 
table principles  involved  in  that  other  maxim,  "  He  who  seeks 
equity  must  do  equity."     While  the  court  of  equity  has  never 

lEdsell  V.   Nevins,  80  Mich.  146;        ZHighstone  v.  Franks,  93  Mich.  52; 
Daniel   v.   Palmer,   124    Mich.    335;     Mclntire  ▼.  Conrad,  93  Mich.  52a 
Cleland    v.    Clark,    123    Mich.    180;        »Blanchard  v.  Williamson,  70  IlL 
Pbalen  v.  Clark,  19  Conn.  421,  444.         647. 

«7  Johna  Ch.  90,  114. 


§  151.]  DEFENSES  BY  PLEA.  199 

recognized  that  it  was  bound  by  the  statutes  of  limitation 
except  where  they  uro  especially  applied  to  equity,  it  has  at  all 
times  insisted  that  persons  having  equitable  rights  shall  exer- 
cise diligence  and  good  conscience  in  prosecuting  the  same. 
"  A  court  of  equity,  which  is  never  active  in  relief  against 
conscience  or  public  convenience,  has  always  refused  its  aid  to 
stale  demands,  where  the  party  has  slept  upon  his  rights  and 
acquiesced  for  a  great  length  of  time.  Nothing  can  call  forth 
this  court  into  activity  but  conscience,  good  faith,  and  reason- 
able diligence.  "Where  these  are  wanting,  the  court  is  passive 
and  does  nothing."  ' 

Where  it  appeared  by  averments  in  a  bill  that  the  complain- 
ant, with  knowledge  of  the  fraud  alleged,  remained  silent  for  a 
great  many  years  without  any  reasonable  excuse,  and  allowed 
third  persons  to  acquire  interests,  relying  upon  the  validity  of 
the  transaction  complained  of,  it  was  held  that  the  bill  should 
be  dismissed  upon  demurrer.'  Although  it  is  a  rule  in  equity 
that  no  length  of  time  will  bar  a  fraud,  still  where  the  knowl- 
edge of  the  fraud  has  been  for  a  long  time  within  the  knowl- 
edge of  the  party  seeking  to  avoid  the  contract,  and  there  have 
been  intervening  rights,  the  party  will  not  be  permitted  to 
take  advantage  even  of  the  fraud ;  the  party  seeking  such  ad- 
vantage must  make  his  election  to  do  so  and  act  promptly;  he 
cannot  sleep  on  his  rights;  and  where  he  is  guilty  of  neglect, 
it  will  be  held  that  he  has  elected  not  to  avail  himself  of 
them. 

This  principle  was  discussed  by  Christiancy,  J.,  in  Campan. 
V.  Van  Dyke*  The  bill  in  that  case  was  filed  to  impeach  and 
set  aside  a  decree  rendered  by  the  court  below.  The  grounds 
upon  which  the  decree  was  sought  to  be  impeached  were,  that 
at  the  time  it  was  rendered  complainant  was  an  infant,  and 
that  no  day  in  court,  after  he  had  become  of  age,  was  given 
him  by  said  decree  to  show  cause  against  it,  and  that  the  de- 

•  Eames  v.  Manley,  121  Mich.  300,  Carpenter  v.  Carpenter,  70  III  457; 

310;   Smith   v.    Clay,  3    Brown   Ch.  Brown  v.  Brown,  154  III.  35,  43;  Mc- 

(Eng.)  639.  Dearmon  v.  Durham,  158  111.  55.  63; 

^Eames  v.  Manley.  121  Mich.  300;  Benson  v.  Dempster,  183  111.  297,310; 

Cook  V.  Hall,  12:i  Mich.  37a  Preston  v.  Preston,  95  U.  S.  200.  203; 

»  15  Mich.  371;  Harlow  v.  Lake  Su-  1  Danl.  Ch.  PI.  &  Pr.  639;  Story,  Eq. 

perior  Iron  Co.,  41  Mich.  583;  John-  PI.,  sees.  755,  756. 
son,  Adm'i.  v.  Diversey,  82  111.  446; 


200  DEFENSES  BY  PLEA.  [§  15L 

cree  was  obtained  by  fraud  and  collusion.  The  decree  was 
rendered  two  months  before  the  defendant  became  of  age;  the 
bill  was  filed  seven  years  afterwards.  The  proofs  show  that 
the  alleged  fraud  was  within  the  knowledge  of  the  complain- 
ant. The  defendant  claimed  that  the  complainant  was  guilty 
of  laches  and  that  his  bill  ought  to  be  dismissed  upon  that 
ground.  The  complainant  claimed  that  the  limitation  in  such 
case  ouo-ht  to  be  co-extensive  with  the  limitation  as  applied  to 
real  estate.  The  court  say:  "We  do  not  mean  to  say  that 
there  is  any  fixed  period,  short  of  twenty  years  (or  such  other 
period  as  may  have  been  adopted  by  courts  of  equity  in  analogy 
to  the  appropriate  statute  of  limitation  which  may  be  in  force), 
which  would  of  itself  operate  as  a  peremptory  legal  bar  to  such 
a  bill,  if  the  facts  and  circumstances  sufficiently  account  for 
and  excuse  the  delay,  and  render  it  ])robable  that  the  parties? 
claiminof  the  benefit  of  the  decree  could  have  lost  nothing  in 
consequence  of  the  delay,  and  will  not  be  deprived  of  any  of 
the  means  of  sustaining  it,  which  they  would  have  possessed 
had  it  been  attacked  at  an  earlier  period. 

But  sound  public  policy  and  a  just  regard  for  the  stability 
of  private  rights  require  that  the  solemn  judgments  and  de- 
crees of  courts  aff'ecting  the  rights  of  property  shall  not  he 
lightly  disturbed,  nor,  without  the  strongest  reason,  allowed  to 
be  impeached  after  any  considerable  period  of  time,  during 
which  the  parties  have  been  allowed  to  rely  upon  them,  and 
others  may  have  obtained  interests  on  the  faith  of  them,  or  the 
evidence  by  which  they  might  have  been  sustained  has  been 
lost.  And  if  a  party  to  such  judgment  or  decree  might,  after 
any  considerable  period,  impeach  its  validity  without  showing 
a  proper  excuse  or  reasonable  justification  for  the  delay,  and 
especially  when  it  appears  probable  that  material  evidence  to 
sustain  it  may,  in  the  meantime,  have  been  lost,  a  general  feel- 
ing of  insecurity  and  distrust,  very  injurious  to  property  and 
business,  must  naturally  result." 

Courts  of  equity  may  be  said  to  act  not  so  much  in  obedience 
to  the  law,  in  such  cases,  as  in  analogy  to  it.  In  some  of  the 
cases  the  courts  act  upon  the  provisions  of  the  statutes  appli- 
cable to  common-law  actions.  In  a  case  of  concurrent  juris- 
diction the  statute  w^ould  seem  to  apply  equally  to  courts  of 
equity  as  well  as  of  law  ;  the  equity  court  would  not  permit 


g   152.1  DEFENSES  BY  PLEA.  2i)l 

the  party  to  obtain  a  greater  right  by  adopting  the  equity 
jurisdiction  than  he  would  had  he  prosecuted  his  legal  remedy 
In  Bank  v.  Daniel'  the  court  say:  "Courts  of  law  and 
equity  have  concurrent  jurisdiction;  and  the  complainants 
having  elected  to  resort  to  equity,  which  they  had  the  right  to 
do,  were  as  subject  to  be  barred  by  the  statute  in  the  one  court 
as 'in  the  other.  In  such  cases  the  courts  of  equity  act  in 
obedience  to  the  statutes  of  limitation,  from  which  they  are  no 
more  exempt  than  courts  of  law." 

Lord  Camden  said:     "  A  court  of  equity  has  no  legislative 
authority,  and  it  cannot  properly  define  the  time  of  bar  by  a 
positive  rule,  to  an  hour,  minute,  or  year;  it  is  governed  by 
circumstances.     But  as  often  as   parliament   has  limited   the 
time  of  actions  and  remedies  to  a  certain  period  in  legal  pro- 
ceedings, chancery  has  adopted  that  rule  and   applied  it  to 
similar°cases  in  equity;  for  when  the  legislature  has  lixed  a 
time  at  law,  it  would  be  preposterous  for  equity,  which  by  its 
proper  authority  always  maintained  a  limitation,   to  counte- 
nance laches  beyond  the  period  allowed  by  law.  Therefore,  in 
all  cases  where  the  legal  right  has  been  barred  by  parliament, 
the  equitable  right  to  the  same  thing  has  been  concluded  by 
the  same  bar.'"    While  Lord  Pvcdesdale  expressed  the  opinion 
that  "the  statute  virtually  included  courts  of  equity,  and  that 
it  was  a  mistake  to  say  that  equity  acts    in   analogy   to  the 
statute;  it  acts  in  obedience  to  it."  ^     And  this  opinion  seems 
to  have  been  followed  by  some  of  the  judges  in  England  and 
America. 

§  152.  Where  the  case  falls  within  the  exceptions  to  the 
statute,  or  there  is  reasonable  excuse  for  the  delay.— It 
goes  without  saying  that  if  the  case  alleged  and  proven  falls 
within  the  exceptions  to  the  statute  of  limitations,  there  can 

1 13  Peters  (U.  S.),  32,56;  People  ex  Wend.  (N.  Y.)  586.     In  Farnham  v. 

rel.  V.  Everest,  4  Hill  (N.  Y.),  71.  Brooks,    9   Pick.   (Mass.)  212,  it   was 

2  Smith  V.  Clay,  cited  in  Deloraine  held  "  that  the  statute  of  limitations 

V.    Browne,  3   Bra  Ch.    (Eng.)   639;  operates  as  a  bar  to  a  suit  in  equity 

Kelly  V.  Boettcher,  85  Fed.  55.  29  C.  by  its  own  force  and  not  by  the  dis- 

C.    A.    14;   Hubbard    v.   Manhattan  cretion  or  courtesy  of  the  court." 

Trust  Co..'  87  Fed.  51.  McCrea  v.  Purmont,  16  Wend.  (N.  Y.) 

»Hovenden  v.  Annesley,  2  Sch.  &  460;  Lawrence  v.   Trustees,    etc..   2 

Lef.  630;  Bank  of  United  States  v.  Denio  (N.  Y.),  577;  Miller  v.   Mcln- 

Duniels,  12  Pet  (U.  S.)  32.  56;  Hum-  tyre,  6  Pet  (U.  S.)  61;    Dodge  v.  In- 

bert     V.    Churchwardens,     etc.,     24  surance  Co..  12  Gray  (Mass.).  65. 


202  DEFENSES  BY  PLEA.  [§  153^ 

be  no  advantage  taken,  b}'  plea  or  otherwise,  by  reason  of  the 
lapse  of  time.  As,  for  example,  if  the  defendant  has  witliin 
the  statutory  period  absconded  from  the  jurisdiction  and 
remained  absent  until  the  time  of  commencing  the  suit;  or  if 
it  should  fall  within  certain  exceptions  that  are  found  within 
the  statutes  referring  to  infancy,  or  being  engaged  in  the  mil- 
itary service  of  the  United  States,  there  would  be  excuse  for 
the  laches. 

Where  the  administratrix  of  a  deceased  partner  filed  a  bill 
soon  after  his  death  against  a  surviving  partner  for  an  account- 
ing, and  soon  after  the  filing  of  the  bill  the  complainant,  a 
resident  of  one  of  the  southern  seceded  states,  was  unable  to 
communicate  with  her  counsel,  and  the  defendant  who  resided 
within  the  jurisdiction  where  the  suit  was  pending  did  noth- 
ing to  bring  the  cause  to  a  hearing,  and  nothing  was  done 
from  1862  to  1869,  it  was  held  that  there  was  not  such  laches 
on  the  part  of  the  complainant  as  would  deprive  her  of  prose- 
cuting her  case  in  equity.' 

§153.  Statute  of  limitations  in  cases  of  trust.— Statutes 
of  limitations  have  their  origin  in  the  demands  of  public  policy 
which  forbid  the  litigation  of  old  and  stale  demands,  and  so 
the  equity  courts,  following  the  same  rule,  emphasized  by  a 
conscientious  and  just  application  of  those  maxims  of  equity 
already  alluded  to,  "Equity  aids  the  vigilant  and  not  those 
who  sleep  upon  their  rights; "  "He  who  seeks  equity  must  do 
equity,"^  have  recognized  the  statute  of  limitations  in  every 
case  where  justice  and  good  conscience  as  well  as  public  policy 
demands  it.  In  cases  of  trust,  however,  there  seems  to  be  an 
application  of  the  rules  peculiar  to  the  particular  case,  and  the 
question  of  trust  involved.  It  cannot  be  said  that  the  statute  of 
limitations  is  not  a  bar  in  cases  of  trust,  for  that  would  include 
cases  arising  between  trustee  and  cestui  que  trust  upon  the  one 
side,  and  strangers  upon  the  other,  and  generally  in  such  cases 
the  statute  operates;  for  it  could  hardly  be  said  that  when  the 
subject-matter  of  the  controversy  was  a  debt  due  the  trustee 
for  the  cestui  que  trusty  it  could  not  be  barred  by  the  statute 
of  limitations;  the  courts,  however,  have  held  that  where  a 
debtor  borrowed  money  of  a  trustee,  knowing  it  to  be  a  trust 

1  Johnson  v.  Diversey,  82  111.  446;  Story,  Eq.  PL,  sec.  75a    »  Ante,  §  150. 


§  153.]  DEFENSES  BY  PLEA.  203 

fund,  and  that  the  borrowing  of  it  was  a  violation  of  the  trust, 
he  held  the  fund  in  trust  for  the  cestui  que  trust  and  the  stat- 
ute of  limitations  would  not  run  against  it' 

As  to  matters  between  the  trustee  and  cestui  que  trust  the 
relation  and  privity  are  such  that  the  possession  of  the  one  is 
the  possession  of  the  other,  and  so  there  could  be  no  adverse 
claim  or  possession  during  the  continuance  of  the  relation; 
therefore  the  statute  would  not  commence  to  run.  The  trust 
funds,  so  long  as  they  are  in  the  hands  of  the  trustee,  are 
there  but  for  one  purpose  —  for  the  benefit  of  the  cestui  que 
trust  and  for  the  carrying  out  of  the  trust.  But  no  fixed  and 
unalterable  rule  can  be  laid  down  with  reference  to  this  ques- 
tion, for  it  is  not  every  direct  and  expressed  trust,  even  be- 
tween trustee  and  cestui  que  tru^t,  that  is  not  subject  to  the 
operation  of  the  statute. 

The  discussion  of  the  chancellor  in  Kane  v.  Bloodgood^  is  so 
full  and  clear  that  it  will  be  profitable  to  consider  it  in  this 
connection.  He  says:  "I  cannot  assent  to  the  proposition 
that  all  cases  of  direct  and  express  trust,  and  arising  between 
trustee  and  cestui  que  trusty  are  to  be  withdrawn  from  the  op- 
eration of  the  statute  of  limitations,  notwithstanding  a  clear 
and  certain  remedy  exists  at  law.  The  word  '  trust '  is  often 
used  in  a  very  broad  and  comprehensive  sense.  Every  deposit 
is  a  direct  trust.  Every  person  who  receives  money  to  be  paid 
to  another,  or  to  be  applied  to  a  particular  purpose  to  which 
he  does  not  apply  it,  is  a  trustee,  and  may  be  sued  either  at 
law  for  money  had  and  received,  or  in  equity,  as  a  trustee,  for 
a  breach  of  trust.  The  reciprocal  rights  and  duties  founded 
upon  the  various  species  of  bailment,  and  growing  out  of  those 
relations,  as  between  'hirer  and  letter  to  hire,  borrower  and 
lender,  depositary  and  person  depositing,  a  commissioner  and 
an  employer,  a  receiver  and  a  giver  in  pledge,'  are  all  cases 
of  express  and  direct  trust;  and  these  contracts,  as  Sir  William 
Jones  observes,  '  are  among  the  principal  springs  and  wheels 
of  civil  society.'  Are  all  such  cases  to  be  taken  out  of  the 
statute  of  limitations  under  the  notion  of  a  trust  when  one  of 
the  parties  selects  his  remedy  in  this  court?    A  review  of  the 

lUphamv.  Wyman,  7  Allen  (Mass.),  499. 

2  7  John&  Ch.  (N.  Y.)  90,  110;  Scott  t.  Surman,  Willes'  Rep.  404,  405;  Jonee 
on  Bailment,  p.  2. 


204  DEFENSES  BY  PLEA.  [§  154. 

decisions  will  enable  us,  as  1  apprehend,  to  deduce  from  them 
a  safer  and  sounder  doctrine,  and  to  establish  upon  the  solid 
foundations  of  authority  and  policy  this  rule:  that  the  trusts 
intended  by  the  courts  of  equity,  not  to  be  reached  or  afifected 
by  the  statute  of  limitations,  are  those  technical  and  continuing 
trusts  which  are  not  at  all  cognizable  at  law,  but  fall  within 
the  proper,  peculiar  and  exclusive  jurisdiction  of  this  court." 
§  154.  Constructive  trusts. —  Where  one,  by  fraud  or  illegal 
use  of  some  fiduciary  or  confidential  relation,  has  obtained  the 
legal  title  to  property,  courts  of  equity,  in  order  to  do  complete 
justice  between  the  parties,  raise  a  trust  out  of  such  fraudu- 
lent and  illegal  acts,  making  the  fraudulent  actor  the  trustee 
of  the  property  so  obtained,  and  requiring  him  to  account  to 
the  defrauded  party.  The  courts  have  not  regarded  the  stat- 
ute of  limitations  as  controlling  in  these  cases  as  to  the  time 
when  relief  can  be  obtained;  they  are  rather  governed  by  the 
laches  of  the  injured  party  after  the  discovery  of  the  fraud; 
the  time  may  be  more  or  less  than  that  fixed  by  the  statute,  and 
it  depends  upon  the  circun. stances  and  facts  which  fix  negli- 
gence or  long  continued  acquiescence  upon  the  person  entitled 
to  relief.  If  the  injured  party  has  no  knowledge  of  the  fraud, 
or  is  under  some  disability  to  bringing  a  suit,  or  the  delay  is 
attributable  to  the  defendant  and  not  within  the  control  of  the 
plaintiff,  the  plaintiff  will  not  be  held  guilty  of  laches;  while, 
on  the  other  hand,  if  he  has  knowledge  of  the  fraud  and  is 
under  no  disability  and  can  prosecute  the  case,  the  courts  would 
require  very  clear  evidence  to  impeach  the  transaction.  Long 
continued  delay  would  be  held  to  be  acquiescence  upon  the  part 
of  the  plaintiff  in  the  transactions  alleged  to  be  fraudulent. 
When  the  fraud  is  known  to  the  plaintiff  it  is  his  duty  to  pros- 
ecute the  case,  and  no  excuses  personal  to  himself,  as  that  he 
has  no  means,  or  is  without  sufficient  evidence,  will  excuse 
delay.' 

'  Phalen  v.  Clark,  19  Conn.  431.  In  saying  anything  indicative  of  his  de- 

Byrd  v.  Rautman,  85  Md.  414,  36  Atl.  sire  to  have  the  contract  rescinded, 

1099,  the  court  say:  "  It  appears  that  or  before  coming  to  a  court  of  equity 

the  contract  now  sought  to  be  de-  for  relief.     Having  abided    by   the 

elated  null  and  void  was  entered  into  transaction  for  a  long  period  after 

more  than  three  years  ago;  and  that  becoming  cognizant  of  the  fraud,  he 

the  appellant  has  waited,  after  full  has  now  no  standing  in  a  court  of 

knowledge    of    the    real    facts,    for  equity." 

nearly  a  whole  year  before  doing  or  In  Haflf  v.  Jenney,  54  Mich.  511,  it 


§  155.] 


DEFENSES  BY  PLEA. 


205 


§  155.  (b)  Pleas  of  the  statute  of  frauds.— Statutes  of 
fraud  may  be  invoked  as  a  defense  when  their  provisions  arc 
violated,  in  equity  as  well  as  at  law,  and  if  it  appears  upon 
the  face  of  the  bill  that  the  facts  averred,  upon  which  the  com- 
plainant seeks  relief,  are  obnoxious  to  the  statute  of  frauds,  the 
defendant  may  demur  to  the  bill.  If  it  does  not  so  appear 
but  can  be  proven,  defendant  may  plead  or  answer.  As,  for 
example,  when  a  contract,  which  is  the  basis  of  the  action,  is 
void  because  of  the  statute  of  frauds,  and  the  facts  showing 
the  invalidity  does  not  appear  upon  the  face  of  the  bill,  the 
defense  may  be  raised  by  a  plea  or  answer. 

In  Strouse  v.  Elting'  it  was  said:  "  The  general  rule  is  that 
the  statute  of  frauds  must  be  pleaded,  and,  unless  it  affirm- 
atively appears  in  the  complaint  or  bill  that  the  agreement 
declared  upon  was  obnoxious  to  the  statute  of  frauds,  a  de- 
murrer will  not  lie."  The  reason  of  the  rule  seems  to  be  that 
a  parol  agreement  is  neither  illegal  nor  void  under  the  law; 


was  held  that  eleven  years  of  unex- 
cused  delay  in  commencing:  a  suit  to 
set  aside  a  deed  or  mortgage  is  laches, 
and  will  defeat  the  bill  if  during  the 
time  important  evidence  has  been 
lost.  Carter  v.  Couch,  28  C.  C.  A. 
520,  84  Fed.  73o.  In  the  opinion  the 
court  say:  "We  can  only  know  that 
there  has  been  delay  until  of  neces- 
sity the  facts  have  become  obscure, 
or  the  proof  of  them  lost;  but 
whether  this  would  tend  to  the  prej- 
udice of  one  party  rather  than  the 
other  is  matter  of  conjecture  merely. 
It  is  sufficient  to  justify  a  denial  of 
relief  that  the  moving  party  is  re- 
sponsible for  the  delay."  Chase  v. 
Chase,  20  R.  I.  203.  37  Atl.  804. 

In  Alger  v.  Anderson.  78  Fed.  729, 
it  was  held  that  against  a  bill  filed 
for  relief  from  a  secret  fraud  the  de- 
fense of  laches  cannot  prevail  if  the 
bill  was  filed  within  a  reasonable 
time  after  the  fraud  was  discovered. 
Wilson  v.  Wilson,  23  Nev.  267,  45Pac. 
1009. 

Where  delay  is  caused  by  disability 
of  defrauded  party.  Trowbridge  v. 
Stone's  Adm'r.  42  W.  Va.454,  26S  R 


363;  Lundy  v.  Seymour,  55  N.  J.  Ch. 
1,  35  Atl.  893;  Reavis  v.  Reavis.  10'J 
Fed.  81:3.     Laches  of  a  next  friend  of 
an  imbecile  ward  cannot  be  imputed 
to  the  ward.     Kidder  v.  Houston  (N. 
J.  Ch.,  1900),  47  Atl.  336.    Where  there 
is  no  change  in  the  situation  of  par- 
ties, and  none  of  them  are  injured  by 
reason  of  the  laches,  courts  have  heWl 
that  actions   in  equity  may  be  sus- 
tained.   Renshaw  v.  First  Nat.  Bank 
(Tenn.  Ch.  A  pp.,  1900),  63  S.  W.  194; 
Pethtel  V.  McCullough,  49  W.  Va.  520, 
39  S.  E.  199:  Ludington  v.  Patton,  HI 
Wis.  208,  86  N.  W.  .")71.    Mclntire  v. 
Pryor,  173  U.  S.  38,  held  that  when 
fraud  is  clearly  proven  the  court  will 
more   favorably  look   upon  any  al- 
leged disability  as  an  excuse  or  delay 
in  bringing  the  suit.  And  in  Old  Col- 
ony V.  Dubuque,  etc.  Co.,  89  Ft-d.  794, 
the  court  held  that  laches  is  not  so 
much  a  matter  of  time,  like  limita- 
tions, as  a  question  of  the  inequity  of 
granting  the  relief  by  reason  of  .some 
change  in  the  condition  or  situation 
of  the  parties  or  property. 

1  110  Ala.  132,  139;  Harper  v.  Camp- 
bell,  102  Ala.  342. 


20G  DEFENSES  BY  PLEA.  [§  156. 

that  the  statutes  of  fraud  which  require  certain  contracts  to 
be  in  writing  are  simply  a  weapon  in  the  hands  of  the  defense 
which  may  be  used  by  the  defendant.  And  so  it  has  been  held 
that  the  defense  that  the  contract  is  within  the  statute  of 
frauds  cannot  be  raised  for  the  first  time  at  the  hearing. 

In  McClure  v.  Otrick^  the  court  say:  "The  courts  of  one  or 
two  of  the  states  hold,  it  is  true,  that  the  statute  may  be 
availed  of  under  a  general  denial  of  the  plaintiff's  right,  such 
as  was  set  up  in  the  answer  in  this  case;  but  the  general  and 
more  reasonable  doctrine  on  the  subject,  and  that  to  which 
this  court  is  fully  committed,  is  that  the  statute  to  be  made 
available  must  be  pleaded." 

§  156.  (c)  Pleas  foinided  upon  any  statute,  private  or  pub* 
lie,  that  may  be  a  bar  to  the  action. —  This  subdivision  needs 
no  discussion.  If  the  case  set  forth  in  the  bill  is  one  that  may  be 
met  by  a  statute,  either  private  or  public,  which  the  alleged 
case  evidently  violates,  advantage  may  be  taken  by  the  de- 
fendant of  the  fact,  either  by  a  demurrer,  by  a  plea,  or  an  an- 
swer. If  the  facts  are  apparent  upon  the  face  of  the  bill,  by 
demurrer;  if  not,  and  they  actually  exist,  then  by  a  plea  or 
answer. 

U18   111.   820,  328.     In   Porter    v.  to  a  court  of  law.   If  this  case  comes 

Womiser,  94  N.  Y.  431,  4o0,  it  was  under  the  rule,  I  think  the  defense 

held  that  "the  general  rule  is  that  was    sufficiently  made   by   answer, 

the  defense  of  the  statute  of  frauds  The  same  strictness  of  pleading  is 

must  be  pleaded,  except  where  the  not  required  in  equity  as  at  law.     It 

complaint  on    its  face   discloses   a  is  not  common  to  plead  the  statute 

case  within  the  statute."     Gordon  v.  specially  or  formally  in  equity,  but 

Reynolds,    114  111.    118;    Farwell    v.  only  to  rely  upon  it,  in  general  terms, 

Tiilson,  76  Me.  228;  Middlesex  Co.  v.  in  the  answer.     The  only  reason  for 

Osgood,  4  Gray  (Mass.),  447;  New  Or-  requiring  the  defense  to  be  made  by 

leans  v.  Dudley,  8  Paige  (N.  Y.),  452;  plea  or  answer  is  that  the  plaintiff 

Wilcox    V.    Kassick,    2    Mich.    165;  may  have  an  opportunity,  if  he  can, 

Mitchell   V.   Woodson,  37  Miss.  5G7.  to  take  the  case  out  of  the  operation 

In  Tazewell,  etc.  v.  Whittle's  Adm'r,  of  the  statute."     And  in  Van  Hook 

13  Gr.it.  (Va.)  329,  344,  the  question  v.  Whitlock,  7  Paige  (N.  Y.),  373,  it 

was  raised  as  to  the  right  of  the  ap-  was  held  that  it  was  not  necessary 

pellant  to  avail  himself  of  the  stat-  to  refer  to  the  statute  creating  the 

ute,  not  having  relied  on  the  same  bar,  "but  that   it  was  sufficient  to 

by  plea  or  answer.     The  court  said:  state  the  facts  necessary  to   bring 

"  It  is  certainly  true,  as  a  general  the  case  within  the  operation  of  the 

rule,  that  this  defense  must  be  made  statute,  and  then  to  insist  that  by 

by  plea  or  answer,  and  the  rule  ap-  reason  of  those  facts  the  complain- 

plies  as  well  to  a  court  of  equity  as  ant's  right  or  remedy  was  at  an  end." 


§§  157,   158.]  DEFENSES  BY  PLEA.  207 

§  157.  The  form  of  pleading  the  seyeral  statutes.— There 

is  no  technical  form  required  in  pleading  the  statute  of  limita- 
tions; it  is  only  necessary  to  state  in  concise  and  unmistakable 
terms  the  facts  which  bring  the  case  within  the  operation  of 
the  statute;  that  the  time  prescribed  as  a  bar  by  the  statute 
of  limitations  has  elapsed;  and  the  same  rule  applies  in  plead- 
ing the  statutes  of  fraud  as  a  defense.  The  facts  which  neces- 
sarily show  the  case  to  be  within  the  statute  should  be  alleged. 
It  is  not  necessary  to  set  out  the  statute  in  the  plea.  If  the 
statute  be  a  special  statute,  the  rule  would  seem  to  be  that  it 
should  be  specially  pleaded  by  a  reference  to  it. 

Second.     Pleas  in  Bar  Founded  Upon  Some  Matters  of  Record. 

§  158.  When  may  be  interposed.— When  the  samesubject- 
raatter  in  a  suit  having  the  same  object,  between  the  same. 
parties,  their  privies  or  representatives  in  the  matter  in  litiga-- 
tion,  has  been  determined  in  a  court  of  record  by  a  final 
judgment  or  decree  which  settles  the  rights  and  differences  of 
the  parties  in  the  suit,  it  is  said  that  the  questions  so  involved 
are  res  adjudicata;  they  have  been  determined  and  are  there- 
fore a  bar  to  another  suit  involving  the  same  subject-matter 
with  the  same  object  between  the  same  parties,  their  privies  or 
representatives,  and  in  such  a  suit  may  be  pleaded  in  bar;  or, 
if  these  facts  appear  upon  the  face  of  the  bill,  it  would  be  sub- 
ject to  demurrer. 

It  is  a  general  rule  applicable  to  all  courts  that  every  judg- 
ment or  decree  which  is  properly  rendered  by  a  court  having 
jurisdiction  of  the  cause  and  the  parties  is  conclusive  between 
those  parties  and  their  privies.'  If  the  bill,  however,  has  been 
dismissed  without  prejudice,  it  would  not  for  this  reason  be  so 
considered,  as  the  matter  might  be  again  litigated. 

1  State  V.  Richmond,  26  N.  H.  232;  said:  "To  make  the  dismission    of 

Wingate  v.  Haywood,  40  N.   H.  437,  the  former  suit  a  technical  bar,  it 

444;  Tucker  v.  Harris,  13  Ga.  1,  58  must  be  an  absolute  decision  upon 

Am'.  Dec.  488;  Hayden  v.  Boothe,  9  the  same  point  or  matter;  and  the 

Xy.  (2  A.  K.  Marsh.)  353;  Watson  v.  new  bill,  it  is  said,  must  be  by  the 

Hopkins,    27    Tex.    637;   Parker    v.  same  plaintiff,  or  his  representatives, 

Straat,  39  Mo.  App.   616;  Story,  Eq.  against  the  same  defendant,  or  his 

PI.,  sec.  780.     In    Neafie  v.  Neafie,  7  representatives." 
Johns.  Ch.  (N.  Y.)  1,  the  chancellor 


208 


DEFENSES  BY  PLEA. 


[§§  159,  160. 


In  Hughes  v.  United  States^  the  court  say:  "In  order  that  a 
judgment  may  constitute  a  bar  to  another  suit,  it  must  be  ren- 
dered in  a  proceeding  between  the  same  parties  or  their  priv- 
ies, and  the  point  of  controversy  must  be  the  same  in  both 
cases,  and  must  be  determined  on  its  merits.  If  the  first  suit 
was  dismissed  for  defect  of  pleadings,  or  parties,  or  a  miscon- 
ception of  the  form  of  proceeding,  or  the  want  of  jurisdiction, 
or  was  disposed  of  on  any  ground  which  did  not  go  to  the 
merits  of  the  action,  the  judgment  rendered  will  prove  no  bar 
to  another  suit." 

§  159.  Where  the  bill  alleges  fraud  in  obtaining  the 
former  decree  or  judgment. —  If  the  bill  of  complaint,  antici- 
pating a  plea  of  former  judgment,  sliould  allege  by  way  of 
avoidance  of  its  effect  that  the  decree  was  obtain-^d  by  fraud 
or  other  circumstances  which  would  render  it  possible  for  the 
complainant  to  attack  it  and  not  be  bound  by  it,  the  plea  must, 
besides  setting  up  the  judgment  or  decree  as  a  bar  by  suitable 
averments,  deny  the  fraud  or  circumstances  upon  which  the 
judgment  is  sought  to  be  impeached.  And  following  the  earlier 
practice  it  must  also  be  supported  by  a  full  answer  as  to  the 
special  charges  in  the  bill.^ 

§  160.  Judgments  or  decrees,  foreign  or  domestic,  legal 
or  equitable. —  Whether  the  matter  pleaded  be  a  judgment  of 
a  court  of  law,  or  a  decree  of  a  court  of  equity,  whether  it  be 
a  foreign  or  a  domestic  court,  the  same  principles  already  dis- 
cussed apply.  If  the  former  adjudication  be  in  a  court  having 
jurisdiction  of  the  subject-matter  between  the  same  parties  or 
their  privies,  and  the  judgment  or  decree  is  final  and  upon  the 
merits,  it  may  be  pleaded  in  bar  in  a  subsequent  action.  It 
has  been  held,  however,  that  if  the  subject  of  the  plea  be  a  de- 
cree in  equit}'^  it  must  be  signed  and  enrolled  before  it  can  be 
pleaded  in  bar. 

In  Davoue  v.  Fanning '  it  was  held,  "  a  decree  cannot  be  im- 
peached by  an  original  bill,  except  on  the  ground  of  fraud,  and 
,no  such  allegation  is  made  in  the  bill.     So  long  as  the  former 


1  4  Wall.  (U.  S.)  232;  Smith  v.  Mc- 
Neal,  109  U.  S.  426,430;  Steamgauge, 
etc.  Co.  V.  Meyrose.  27  Fed.  213; 
Hooker   v.  Hubbard,  102  Masa  243; 


Packet  Co.  v.  Sickles,  5  Wall.  (U.  S.) 
580. 

2  Story,  Eq.  PI.,  sec  784. 

8  4  Johns.  Ch.  (N.  Y.)  199;  Kinsey  v. 
Kinsey,  3  Ves.  Sen.  577. 


CQ    161,  162.]  DEFENSES  BY  PLEA.  '*"*' 

decree  remains  unaisturbed  it  is  a  bar  to  this  suit.  It  cannot 
be  pleaded  in  bar  until  it  is  signed  and  enrolled,  but  it  might 
be  insisted  on  by  way  of  answer;  and  when  the  decree  m  the 
former  suit  appears  on  the  face  of  the  bill  the  defendant  may 
demur  It  would  be  most  disorderly,  and  lead  to  great  con- 
fusion and  endless  litigation,  if  a  now  and  original  bill  between 
the  same  parties,  and  concerning  the  same  matters,  could  be 
sustained,  while  the  former  decree  remained  untouched.  Ihe 
decisions  of  the  court  have  clearly  and  wisely  established  a 
different  rule." 

Third.  Pleafi  Founded  on  Matter  in  Pais. 
§161.  Tlie  plea.— As  distinguished  from  pleas  supported 
by  matter  of  record  are  pleas  supported  by  matter  in  pais. 
«'[n  law,  matter  in  pais  is  matter  of  fact  in  opposition  to  mat- 
ter of  record;  "1  matter  evidenced  by  facts  which  have  not 
been  formerly  made  of  record,  or  shown  by  deed  or  covenants 
under  seal.  Pleas  founded  on  matters  in  pais  have  been 
divided  or  classified  as  pleas  resting  upon  (1)  a  release;  (2)  a 
stated  account;  (3)  a  settled  account;  (4)  an  award;  (5)  par- 
chase  for  valuable  consideration  without  notice  of  equities, 
and  (6)  a  plea  of  title  in  the  defendant.^ 

§  162.  (1)  A  plea  founded  upon  a  release.— The  defendant 
may  plead  a  release  of  the  claim  sought  to  be  enforced  by  the 
bill  either  by  the  complainant  or  his  legally  authorized  agent. 
Such  a  plea  must  aver  the  consideration  upon  which  the  re- 
lease was  based  that  the  court  may  determine  its  sufficiency. 
Where  the  bill  anticipates  the  defense  and  alleges  that  the 
release  was  obtained  by  fraud,  want  of  consideration  or  other 
facts  that  would  avoid  the  release,  the  plea  must  meet  these 
allegations  and  deny  them,  and  in  such  case,  to  be  available, 
the°plea  should  be  accompanied  by  an  answer  supporting  it, 
denying  the  facts  relied  upon  and  alleged  in  the  bill. 

In  Irmengaud  v.  Coudert'  the  bill  filed  alleged  that  the  de- 

1  Bouvier's  Law  Diet.,  vol.  2,  p.  219,  2  Sfcory.  Eq.  PI.,  sec.  795;  Mitf.  Eq. 

"In   Pais."      "This    phrase,   as    ap-  PL,  by  Jeremy,  258. 

plied  to  a  legal  transaction,  prima-  3  03  Blatch.  (U.  S.)  484.   In  this  case 

rily  means  that  it  has  taken  place  the  court  say:  "The  bill  avers  the 

without  legal  formalities  or  proceed-  exif^'.enc?  of  a  cause  of  action  whiHi 

•    ,„  »  entitles  the  plaintiffs  to  an  account- 

ings. 

14 


210 


DEFENSES  BY  PLEA. 


[§i6a 


fendant  relied  upon  a  release  which,  if  it  existed,  was  procured 
by  fraud,  the  particulars  of  which  were  set  forth.  The  plea 
did  not  contain  a  denial  of  these  particulars,  and  the  court  held 
the  plea  not  good.  This  is  no  doubt  the  general  and  settled 
doctrine  in  such  cases. 

§  163.  (2)  A  plea  founded  upon  a  stated  account.— If  the 
account  is  a  stated  account,  that  is,  the  amount  due  and  owing 
the  respective  parties  legally  settled  and  fixed  upon,  it  may  be 
pleaded  in  bar  and  will  bind  the  parties.  It  has  been  said  that 
"a  stated  account  properly  exists  only  where  accounts  have 
been  examined,  and  the  balance  admitted  as  the  true  balance 
between  the  parties,  without  having  been  paid."  ^  This  agree- 
ment upon  the  balance  due  and  unpaid  may  be  either  express 
or  implied;  as  where  the  parties  have  acted  upon  it  as  stated, 
or  caused  others  to  so  act  and  have  thus  created  a  legal  estop- 
pel so  that  they  could  not  be  held  to  deny  the  correctness  of 
the  amount  and  its  non-payment.  As,  for  example,  where  a 
certificate  of  indebtedness  of  a  railroad  company  was  audited 
by  its  authorized  officers  and  accepted  by  its  creditors,  it  was 

residue;  and,  if  his  plea  is  main- 
tained, it  is  a  bar  to  the  relief  pro 
tanto  to  which  the  plaintiff  would 
otherwise  be  entitled;  but  he  can 
gain  nothing  by  a  plea  to  part  of  the 
bill,  if  his  plea  fails  to  meet  other 
allegations  which,  if  true,  would,  not- 
withstanding the  matters  alleged  in 
the  plea,  entitle  the  plaintiff  to  all 
the  relief  sought.  It  is  stated  in 
Story's  Equity  Pleadings  (sec.  680)  to 
be  "  now  firmly  established  that  the 
plea  itself,  as  well  as  the  answer, 
must  contain  the  averments  nega- 
tiving the  facts  and  circumstances 
so  set  up  in  the  bill  in  avoidance  of 
the  bar  or  defense.  Tested  by  this 
rule,  the  present  plea  would  seem  to 
be  bad.  Assuming  this  to  be  so,  how- 
ever, the  plaintiffs'  remedy  is  not  by 
motion  to  strike  it  from  the  files,  but 
by  setting  it  down  for  argument." 
Allan  V.  Randolph,4  Johns.  Ch.  (N.Y.) 
6:39 ;  Bolton  v.  Gardner,  3  Paige  (N,  Y.), 
273. 

1  Story,  Eq.  PI.,  sec.  798. 


ing,  and  also  avers,  by  way  of  antici- 
pating a  defense  that  the  defendants 
rely  upon,  a  release  of  the  cause  of 
action,  the  existence  of  which   the 
plaintiffs  do  not  admit,  but  which, 
if  it  does  exist,  w;is  procured  by  fraud 
and  misrepresentation,  the  particu- 
lars of  which  are  set  forth  in  detail. 
The  defense  of  a  release  of  the  cause 
of  action  which  a  plaintiff  sets  forth 
in  his  bill  may  always  be  brought 
forward  by  plea.     Ordinarily  such  a 
defense  constitutes  a  pure  plea,  be- 
cause it  rests  upon  matters  dehors 
the  bill.   The  plea  in  this  case  is  not 
of  that  character,  because,  to  be  good, 
it  must  negative  some  of  the  aver- 
ments of  the  bill.     The  pleader  has 
not  negatived  the  averments  setting 
forth  that  the  release  was  procured 
by  fraud,  but  confines  his  plea  to  the 
other  allegations  of  the  bill,  and  an- 
swers to  the  averments  of  fraud  by 
denying  the  fraud.     It  is.  of  course, 
fompetent  for  a  defendant  to  plead 
to  part  of  a  bill  and  answer  to  the 


§  163. J  DEFENSKS  BY  PLEA.  211 

held  to  be  binding  as  an  account  stated.'  Where  goods  were 
furnished  laborers  on  orders  from  their  employer,  and  the 
amount,  as  shown  by  the  orders,  deducted  by  the  employer 
from  the  wages  of  the  laborers,  it  was  held  to  constitute  an 
account  stated.^  Where  monthly  statements  were  received 
by  a  principal  from  his  broker  as  to  the  state  of  his  monthly 
account,  and  approved,  and  he  so  informed  the  broker,  the 
statement  being  sufficiently  full  to  inform  the  principal  of  the 
state  of  the  account,  they  were  held  to  constitute  an  account 
stated.^  It  may  be  said  that  any  fact  showing  that  the  minds 
of  the  parties  have  met  and  settled  upon  the  items  of  the  ac- 
count as  correct  is  evidence  of  an  account  stated.  It  has  also 
been  held  that  it  is  not  necessary  to  show  a  minute  examina- 
tion of  the  items  of  the  account  if  the  account  has  been  fairly 
and  fully  rendered,  and  an  opportunity  for  an  examination 
and  a  general  agreement  that  the  balance  is  correct. 

In  Stenton  v.  Jerome^  the  court  say:  "It  is  true  that  an  ac- 
count stated  is  conclusive  upon  the  parties  to  it,  unless  im- 
peached for  fraud  or  mistake.  But  what  is  an  account  stated  ? 
It  takes  two  parties  to  make  one  — the  debtor  and  creditor. 
There  must  be  a  mutual  agreement  between  them  as  to  the  al- 
lowance and  disallowance  of  the  respective  claims,  and  as  to 
the  balance  as  it  is  struck  upon  the  final  adjustment  of  the 
whole  account  and  demands  of  both  sides.  Their  minds  must 
meet  as  in  making  other  agreements,  and  they  must  both  as- 
sent to  the  account  and  the  balance  as  correct.     But   this 

1  St.  Louis,  etc.  Ry.  Co.  V.  Camden  Chace    v.  Tr afford,  116    Mass.    529; 

Bank,  47  Ark.  541,  1  S.  W.  Rep.  704.  Holmes  v.  D'Camp,  1  Johns.  34. 

In  this    case  the  court  say:   "The  2 Bull  v.  Brockway,  48  Mich.  523: 

auditing  of  the  account  by  the  au-  Kusterer,  etc.  Co.  v.  Friar,  99  Mich, 

thorized  agent  of  the  company,  and  190.     As  to  manner  of  pleading  in 

the  acceptance  of  the  statement  by  equity  see  cases  cited  in  annotation, 

the  laborer,  constituted,  in  each  case,  99  Mich.   191;    Swain  v.  Knapp,  34 

an  account  stated,  called  in  the  old  Minn.  233,  25  N.  W.  397;  Hanley  v. 

law  insimul  computassent.     A   bal-  Noyes,  35  Minn.   174,  28  N.  W.  189: 

ance   being  thus  admitted   by   the  Ogden  v.  Astor,  4  Sandf.  (N.  Y.)  311. 

company,  a  promise  to  pay  it  is  im-  3  Beach  v.  Kidder,  8  N.  Y.  Sup.  587. 

plied,  and  upon  this  promise  an  ac-  *  54  N.  Y.  480,  484.    But  it  has  been 

tion  maybe  maintained  without  ref-  held  that  the  mere  rendering  of  an 

erence  to  the  original  items  of  the  account    with     acceptance    is    not 

account."     Laycock  v.   Pickles,  116  enough.      Guernsey   v,    Rexford,  63 

Eng.   Com.   Law  (4  B.    &  S.),  496;  N.  Y.  631;  Robertson   v.  Wright,  17 

Grat.  (Va.)  534. 


212  DEFENSES  BY  PI^A.  [§  163. 

agreement  and  assent  need  not  be  direct  and  express,  but  may 
be  implied  from  circumstances.  If  one  party  presents  bis  ac- 
count to  the  other  and  the  latter  makes  no  objection,  it  ma}'' 
well  be  inferred  that  he  is  satisfied  with  and  assents  to  it  as 
correct.  If  an  account  be  made  up  and  transmitted  by  one 
party  to  the  other  by  mail,  and  the  latter  keeps  it  for  some 
considerable  time  without  making  any  objection,  he  is  held  to 
have  acquiesced  in  it.  But  in  all  cases  there  must  be  proof,  in 
some  form,  of  an  express  or  implied  assent  to  the  account 
rendered  by  one  party  to  another,  before  the  latter  can  be 
held  to  be  so  far  concluded  that  he  can  impeach  it  only  for 
fraud  or  mistake." 

The  account,  or  the  balance  claimed  upon  it,  should  be  in 
writing  and  acknowledged  by  the  debtor,  and  the  plea  should 
set  forth  these  facts,  and  also  that  it  was  final;  for  if  it  were 
an  account  continuing,  that  is,  running  upon  both  sides,  it 
would  not  have  that  degree  of  certainty  that  would  be  re- 
quired.' A  general  release  of  all  demands  not  under  seal  has 
been  held  to  be  a  stated  account. 

U  DanL  Ch.  PI.  &  Pr.  666.  "A  composition  will  be  sufficient;  nor 
plea  of  a  stated  account  is  a  good  bar  will  the  circumstance  of  the  account 
to  a  bill  for  an  account;  for  there  is  appearing  to  have  been  settled,  er- 
no  rule  more  strictly  adhered  to  in  rors  excepted,  be  a  sufficient  ground 
this  court  than  that,  when  a  defend-  to  open  a  settled  account,  unless  spe- 
ant  sets  forth  a  stated  account,  he  cific  errors  are  pointed  out  in  the  bill, 
shall  not  be  obliged  to  go  upon  a  gen-  A  stated  account  will  not  operate  as 
era!  one.  In  order  to  support  a  plea  .a  bar  to  discovery,  where  the  plaint- 
of  a  stated  account,  it  must  beshown  iff  is  entitled  to  such  discovery,  not 
to  have  been  final;  it  is  not  sufficient  "for  the  purpose  of  any  proceeding 
to  allege  that  there  has  been  a  divi-  between  him  and  the  defendant,  but 
dend  made  between  the  parties,  to  enable  him  to  protect  himself 
which  implied  a  settlement,  for  a  from  claims  by  other  people.  A  gen- 
dividend  may  be  made  upon  a  sup-  eral  releaseof  all  demands,  not  under 
position  that  the  estate  will  amount  seal,  may  be  pleaded  as  a  stated  ac- 
to  so  much,  but  may  be  still  subject  count.  It  is  not  essential,  in  order 
to  an  account  being  stated  after-  to  the  validity  of  a  stated  account 
wards.  A  plea  of  a  stated  account  as  a  bar,  that  it  should  have  been 
must  show  that  it  was  in  writing,  signed  by  the  parties:  it  will  besuffi- 
and  likewise  the  balance  in  writing,  cient  if  an  account  has  been  deliv- 
er at  least  set  forth  what  the  bal-  ered  and  acquiesced  in  for  a  consid- 
ance  was.  It  does  not,  however,  erable  length  of  time;  thus,  wliere 
seem  to  be  necessary  to  aver  that  there  have  been  mutual  dealings  be- 
the  account  was  settled  between  the  tween  a  merchant  in  England  and  a 
parties  upon  a  minute  investigation  merchant  beyond  sea,  and  an  ac- 
of  items;   a  general   agreement  or  count  is  transmitted  by  one  to  th& 


§  104.] 


DEFENSES  BY  PLEA.  213 


§  164.  Substance  of  the  plea  of  account  stated.— The  plea 
should  aver  that  the  account,  or  at  least  the  balance,  was  ren-^ 
(lered  the  party  indebted  in  writing,  and  that  it  was  a  final  . 
account;  that  it  was  accepted  and  agreed  upon  between  the 
parties  either  expressly  or  impliedly;  that  the  stated  account 
is  just  and  true  to  the  best  of  the  defendant's  knowledge  and . 
belief,  and  this  is  not  dependent  upon  fraud  or  error  being  al-~ 
leo-ed  in  the  bill  of  complaint.^     By  the  great  weight  of  au- 
thority, if  indeed  there  is  any  holding  otherwise,  it  is  held  to 
bo  settled  that  it  is  not  necessary  to  set  out  the  account  in  full 
in  the  plea.     The  defendant,  if  he  seeks  to  take  advantage  of 
the  matter  contained  in  the  stated  account,  should  do  so  by 
answer  and  not  l)y  plea  or  demurrer. 

This  matter  was  fully  discussed  and  settled  in  the  case  of 
Face  V.  Bartles?  The  court  say:  "  I  think  that,  upon  principle, 
where  a  bill  is  filed  for  an  account,  and  the  account  does  not 
appear  by  the  allegations  and  charges  of  the  bill  to  be  useful  in 
establishino-  the  complainant's  right  to  it,  but  appears  merely 
as  that  whfch  must  ultimately  be  rendered  in  fulfillment  of  an 
obligation  the  enforcement  of  which  is  sought,  the  defendant 
need  not  set  out  the  account  in  his  answer,  in  case  it  is  neces- 
sary to  resort  to  answer  rather  than  to  plea  or  demurrer  in  resist- 
ing the  complainant's  alleged  right  to  the  account;  but  if  the 

other,  if  the  person  to  whom   it   is  the  other  keeps  it  by  him  about  two 

sent  keeps  it  by  him  for  a  length  of  years  without  objection,  the  rule  of 

time  without  making  any  objection  this  court,  as  well  as  of  merchants, 

it  will  bind  him,  and  prevent  him  is  that  it  is  considered  as  a  stated 

opening    the    account    afterwards,  account."  or.  m    t   Fn 

The  mere   delivery  of  an   account,        ^  Griggs  vGarretson  25  N.XE^ 

however,  will  not  constitute  a  stated  178;  Story.  Eq.  PI.  802;  1  Danl  PI.  & 

account,  without  some  evidence  of  Pr.  6G7;  Harrison  v.  Bradley,  5  Ired. 

acquiescence  which  may  afford  suffi-  Eq.  (N.  C.)  136;  Harr.son  v.  Farnng- 

cielt  legal  presumption  of  a  settle-  ton,  38  N.  J^  Eq.  858     In  Schwa rz  v 

ment.     It  has  been  said  that,  among  Wendall,  Harr.    Ch.    (Mich.)   39o.  it 

n^erchants,  it  is  looked  upon  as  an  al-  was  held  that  this  p  ea  shou  d  aver 

lowance  of  an  account  current,  if  the  that  the  accounts  settled  a  1  the  dif- 

merchant  who  receives  it  does  not  Ob-  ferences  between  the  parties;  that 

iect  to  it  in  a  second  or  a  third  post;  the  accounts  were  just  and  fair  and 

but  in  Tickei  v.  Short,  2  Ves.  Sr.  239.  due,  and  that  these  averments  should 

Lord  Hardwicke  said  that  if  one  mer-  be  supported  by  an  answer  to  the 

chant  sends  an  account  to  another  same  effect. 
in  a  different  country,  on  which  a        M5  N.  J.  Eq.  371.  376. 
balance  is  made  due  to  himself,  and 


214 


DEFENSES  BY  PLEA. 


[§  16-i. 


right  to  relief  may  be  resisted  by  plea  or  demurrer,  and  the  tle- 
femhint,  instead  of  availing  himself  of  those  pleadings,  chooses 
to  answer,  he  must  do  so  fully  and  without  reserve,  setting  out 
the  account,  for  his  submission  to  answer  in  such  case  is  volun- 
tary. The  demurrer  and  plea  both  admit  the  facts  stated  in 
the  bill.  The  demurrer  denies  that  they  make  a  case  against 
the  defendant,  and  the  plea  avoids  their  force  by  the  presenta- 
tion of  matter  in  avoidance  of  the  case  made  by  them." 

If  the  bill  of  complaint  anticipates  the  plea  of  a  stated  ac- 
count and  alleges  fraud  or  mistake  as  to  the  account  stated, 
the  defendant  must  support  his  plea  by  an  answer  denying  the 
alleo-ations  of  the  bill.  And  if  the  bill  seeks  to  impeach  the 
the  account,  alleging  that  it  has  never  been  presented  for  ex- 
amination and  that  the  plaintifif  has  no  counterpart  of  it  and 
it  is  required  to  be  set  forth,  in  such  case  it  has  been  held  that 
the  defendant  must  accompany  his  plea  with  a  statement  of 
the  account.^ 


1  Hankey  v.  Simpson,  3  Atk.  303. 
In  Green  v.  Harris,  11  R  I.  5,  20,  the 
court  say:  "Pleas  of  stated  account 
(where  the  bill  seeks  to  open  and 
(•orrect)  are  regulated  by  the  same 
principles  which  regulate  all  similar 
anomalous  pleas.  To  a  bill  to  im- 
peach a  decree  for  fraud  the  decree 
itself  is  pleaded.  To  a  bill  to  set 
aside  an  award  the  award  is  pleaded. 
So  to  a  bill  alleging  circumstances 
to  take  an  account  out  of  the  statute 
of  limitations  the  statute  is  pleaded. 
So  as  to  a  release.  In  Pusey  v.  Des- 
bouvrie,  3  P.  Wms.  315  (1734).  to  a  bill 
alleging  that,  though  a  release  had 
been  given,  there  was  property  not 
covered  by  the  release,  and  asking 
for  an  account,  the  respondent 
pleaded  the  release.  The  complain- 
ant objected  that  the  release  could 
not  be  pleaded  in  bar,  as  the  very 
object  of  the  bill  was  to  set  it  aside. 
Lord  Talbot  replied  that  it  was  every 
day's  practice.  The  books  are  full 
of  cases  of  bills  filed  to  open  settled 
accounts  for  either  fraud  or  error,  in 
which  the  account  itself  is  pleaded 


in  bar  with  proper  averments.  The 
principle  is  the  same  in  regard  to 
accounts  stated,  but  not  actually 
settled.  In  Knight  v.  Bampfield  et 
al..  1  Vern.  179,  A.  D.  1683,  before 
Lord  Keeper  Guilford,  the  bill 
claimed  relief  against  a  stated  ac- 
count as  not  fairly  stated,  alleging 
that  by  collusion  more  had  been 
allowed  than  was  really  due.  The 
stated  account  was  pleaded.  In 
Willis  v.  Jernegan,  '2  Atk.  251,  to  a 
bill  to  set  aside  an  agreement  and  to 
open  an  account,  a  stated  account 
was  pleaded.  In  De  Montmorency 
V.  Devereux,  1  Dr.  &  Wal.  119.  127, 
to  a  bill  to  set  aside  a  deed  so  far  as 
it  confirmed  a  former  deed,  and 
operated  as  a  release,  the  deed  was 
pleaded  in  bar.  Same  case  in  2  Dr. 
&  Wal.  410.  The  doctrine  as  to  pleas 
of  account  stated  is  so  recognized 
and  laid  down  by  Chancellor  Wal- 
worth in  Weed  v.  Smull  et  al.,  7 
Paige,  573.  It  is  difficult  to  see  how 
it  could  be  otherwise  without  chang- 
ing the  whole  system  regulating 
what  are  called  anomalous  pleas  or 


C  155  1  DEFENSES  BY  PLEA.  215 

§  165.  (3)  Plea  of  a  settled  account.— A  settled  account  may- 
be said  to  be  a  stated  account  if  it  is  not  paid  and  discharged; 
therefore  much  of  the  discussion  in  the  last  section  is  appli- 
cable here.  It  has  been  said  that  "the  word  'settle'  has  an 
established  legal  meaning,  and  implies  the  mutual  adjustment 
of  accounts  between  different  parties  and  an  agreement  upon 
the  balance,"  and  when  it  is  averred  that  the  parties  settled 
their  account  it  includes  the  incidents  and  requisites  of  a  set- 
tlement, and  is  therefore  an  averment  of  a  consent,  because 
without  consent  of  the  parties,  expressed  or  implied,  there 
could  be  no  settlement.^ 

When  an  account  is  settled  and  the  settlement  evidenced 
by  writing,  as  a  statement  of  the  balance  agreed  upon,  or  a 
receipt  for  the  payment  and  satisfaction  of  it,  or  when  by  the 
consent  or  knowledge  of  the  parties  innocent  third  persons  have 
acted  upon  it,  a  court  of  equity  will  not  reopen  it  unless  for 
fraud  or  mistake;  and  so  it  follows  that  such  a  settlement  may 
be  pleaded  as  a  defense  in  equity.'^  But  a  receipt  in  full  of  all 
demands  for  the  payment  of  the  full  amount  agreed  upon,  if 
the  settlement  was  brought  about  by  fraud  or  mistake,  or  sus- 
picious circumstances  which  upon  investigation  might  show 
fraud  or  mistake,  will  be  no  bar  to  a  bill  for  an  accounting.' 
But  the  fraud,  or  mistake,  or  suspicious  circumstances  must 
be  alleged  in  the  bill  of  complaint.  When  the  bill  contains 
such  allegations,  a  plea  of  settled  account  must  be  supported 
by  an  answer  denying  them.     The  defendant  must  aver  in  his 

pleas  not  pure.  The  bill  claims  an  grounds,  there  the  defendant  in 
account,  and,  instead  of  reserving  it  equity  pleading  the  legal  bar  must 
for  replication,  charges  that  the  re-  of  necessity  accompany  his  plea 
spondent  sets  up  a  pretended  stated  with  averments  generally  denying 
or  settled  account  as  an  excuse  for  the  equitable  matter;  for  otherwise 
not  accounting,  and  then  goes  on  to  there  would  be  no  fact  to  be  tried 
allege  circumstances  of  fraud  or  upon  his  plea,  because  the  bill  ad- 
error  as  reasons  why  this  pretended  mits  the  legal  bar."  See  also  Foley 
bar  should  be  set  aside  or  not  avail  v.  Hill,  3  Myl.  &  C.  475,  483. 
him.  The  respondent  has  in  most  i  Baxter  v.  State,  9  Wis.  38,  44. 
cases  no  other  defense,  except  to  ZGrumley  v.  Webb,  48  Mo.  562. 
rely  in  his  plea  on  the  stated  account,  ^  Story,  Eq.  PI.,  sees.  799,  800,  801. 
and  to  deny  the  fraud  or  error  "Even  a  receipt  in  full  of  all  de- 
charged.  As  Sir  John  Leach  says  in  mands  will  be  no  bar  to  a  bill  for  an 
Cork" v.  Wilcox.  5  Madd.  328,  330:  account,  if  there  are  suspicious  cir- 
'  Where  the  plaintiff  in  equity  seeks  cumstances  appearing  in  the  case." 
to  avoid  a  legal  bar  upon  equitable 


216  DEFENSES  BY  PLEA.  [§§  166,  167. 

plea  that  the  settlement  upon  which  he  depends  was  just  and 
true  to  the  best  of  his  knowledge  and  belief.^ 

§  166.  (4)  A  plea  of  an  award.— To  a  bill  for  an  account- 
ing to  foreclose  a  mortgage,  or  for  the  enforcement  of  any 
claim,  the  defendant  may  plead  an  award  if  it  includes  and 
settles  the  subject-matter  of  the  bill  of  complaint.  The  mere 
agreement  to  arbitrate  cannot  be  pleaded  in  bar  to  a  bill  in 
equity ;  there  must  be  an  actual,  complete  legal  submission  of 
the  controversy,  which  is  the  subject-matter  of  the  bill,  to  arbi- 
trators fairly  and  lawfully  selected,  and  a  final  award  deter- 
mined upon  without  fraud  or  prejudice.^  But  it  has  been  held 
that  the  award  is  binding  upon  the  parties,  even  when  the  sub- 
mission did  not  full}''  comply  with  the  statute,  but  was  full  and 
complete  and  without  fraud.'  If  the  proceedings  were  fraud- 
ulent, or  the  arbitrators  corrupt  and  dishonest  in  their  find- 
ings, or  their  decision  clearly  induced  by  mistake,  their  award 
would  be  set  aside.  And  when  the  bill  of  complaint  to  which 
the  plea  of  an  award  is  filed  admits  the  award,  but  to  meet  the 
plea  alleges  fraud,  corruption  or  mistake,  the  defendant  must 
not  only  deny  the  charges  by  averments  in  the  plea,  but  must 
support  his  plea  by  an  answer  denying  such  allegations.* 

§  167.  (5)  A  plea  of  purchase  for  a  valuable  consideration 
without  notice  of  equities. —  This  suggests  a  broad  subject.  The 
rights,  duties  and  liabilities  of  a  iona  fide  purchaser  are  in- 

1  Story.  Eq.  PI,  sec.  802:  1  Danl.  likewise  to  the  discovery  sought  by 
PI.  &  Pr.  666;  Schwarz  v.  Wendell,  the  bill.  If  fraud  or  partiality  are 
Harr.  Ch.  (Mich.)  395.  charged  against  the  arbitrators,  those 

2  Street  v.  Rigby,  6  Vesey,  815;  charges  must  not  only  be  denied  by 
Wood  V.  Copper  Mines  Co.,  25  L.  J.  way  of  averment  in  the  plea,  but 
C.  P.  166;  Cook  v.  Cook,  L.  R  4  Eq.  the  plea  must  be  supported  by  an 
77,  30  L.  J.  Ch.  480;  Davidson  v.  answer,  showing  the  arbitrators  to 
Johnson,  16  N.  J.  Eq.  112.  have  been  incorrupt  and  impartial. 

3  Burhans  v.  School  District,  48  N.  And  any  other  matter  stated  In  the 
Y.  Sup.  702;  aflBrmed,  165  N.  Y.  661,  bill,  as  a  ground  for  impeaching  the 
59N.E.  1119;  Needhamv.  By  the  wood,  award,  must  be  denied  in  the  same 
—  Tex.  — ,  61  S.  W.  426;  Miller  v.  manner."  In  Woods  v.  Roberts,  185 
Miller,  3  Va,  Sup.  Ct.  Rep.  34,  87  S.  111.  489,  57  N.  R  426,  it  appeared  that 
E.  792.  the  arbitrators  corruptly  and  fraudu- 

••  1  Danl.  Ch.  PI.  &  Pr.  671 ;  Story,  Eq.  lent! y  favored  one  of  the  parties,  and 

PL  803.     "An  award  may  be  pleaded  that  the  party  knew  and  understood 

to  a  bill  to  set  aside  the  award  and  that    she   would    be    favored.    The 

open  the  account;  and  it  is  not  only  award  was  set  aside, 
good  to  the  merits  of  the  case,  but 


g  167.]  DEFENSES  BY  PLEA.  21 4 

volved.  Under  what  circumstances  and  conditions  may  one 
be  considered  a  Una  fide  purchaser  ?  What  is  considered  a  legal 
notice  of  the  equities  of  a  prior  purchaser  or  incumbrancer? 
What  is  enough  to  put  a  reasonably  prudent  man  on  inquiry? 
for  notice  to  the  purchaser  need  not  be  actual.  If  there  is 
enough  to  put  a  reasonably  prudent  man  on  inquiry  he  must 
investigate,  and  will  be  held  to  have  had  actual  notice  of  the 
facts  that  such  an  investigation  would  reveal,  and  if  under  such 
circumstances  he  fails  to  investigate  he  is  held  to  know^  what 
he  reasonably  ought  to  know.  But  it  is  not  the  object  of  this 
treatise  to  discuss  these  questions;  the  subject  in  hand  is  how 
can  a  hona  fide  purchaser  who  has  paid  value  avail  himself  of 
his  rights  when  they  are  jeopardized  by  the  bill  filed  in  the 
cause  to  which  he  is  made  the  defendant.  It  is  well  settled 
that  he  may  plead  such  a  purchase  in  bar  of  the  action,  if  he  is 
a  purchaser  for  value,  without  notice  of  prior  equities,  and  has 
actually  paid  the  amount  for  which  he  purchased  the  property; 
if  he  is  in  every  respect  a  lonafide  purchaser  for  value,  and  has 
paid  the  purchase  price.  The  question  has  often  arisen  when 
the  defendant  has  purchased  and  paid  for  property  which  the 
owner  has  sold  prior  to  such  purchase  on  contract,  or  when 
the  defendant  is  a  subsequent  incumbrancer  for  value,  having 
paid  the  amount  without  notice  of  a  prior  incumbrance. 

The  principle  was  recognized  in  a  very  early  English  case 
which  is  often  cited,  Head  v.  Egerton^  where  Lord  Talbot  in 
the  opinion  of  the  court  said :  "  It  is  hard  enough  upon  the 
defendant  that  he  has  lent  his  money  upon  lands  subject  to  a 
prior  mortgage;  but  he  having  had  no  notice  thereof,  I  will 
not  add  to  his  hardship  by  taking  away  from  him  the  title 
deeds,  unless  the  plaintiff  will  pay  him  his  money,  especially 
in  a  case  where  the  plaintiff  has  himself  been  in  some  measure 
accessary  in  drawing  in  the  defendant  to  lend  his  money,  by 
permitting  the  mortgagor  to  keep  the  title  deeds  in  his  pos- 
session, the  delivery  of  which  the  plaintiff  ought  to  have  in- 
sisted on  when  he  took  the  mortgage." 

A  lonafide  purchaser  has  been  defined  to  be  "one  who  buys 
property  of  another  without  notice  that  some  third  person  has 
a  right  to  or  interest  in  such  property,  and  pays  a  full  and  fair 

13  Peere  Wms.  280;  Weston  v.  Berkely,  3  Peere  Wms.  244;  Rowe  v.  Teed, 
15  Ves.  Jr.  372. 


218  DEFENSES  BY  PLEA.  [§§  168,  160. 

price  for  the  same,  at  the  time  of  such  purchase,  or  before  he  has- 
notice  of  the  claim  or  interest  of  such  other  in  the  property.'" 
§  168.  Persons  affected  by  notice  may  Lave  the  benefit  of 
the  want  of  notice  by  intermediate  parties.— The  title  of 
the  property  having  become  full  and  complete  in  a  lona  jide 
purchaser  without  notice,  he  may  convey  a  legal  title  to  one 
having  notice  of  the  former  equities,  the  purchaser  taking  with 
his  conveyance  the  benefit  of  want  of  notice  to  his  grantor. 
This  principle  was  discussed  by  the  court  in  an  early  case  in. 
the  supreme  court  of  the  United  States  —^oo/i^  v.  Chiles?  The 
court  say:    "A  purchaser  with   notice  may   protect  himself 
under  a  purchaser  by  deed  without  notice;   but  cannot  do  it 
by  purchase  from  one  who  holds  claims  by  contract  only.    The 
cases  are  wholly  distinct.     In  the  former,  the  purchaser  with, 
notice  is  protected;  in  the  latter,  he  has  no  standing  in  equity, 
for  an  obvious  reason:  that  the  plaintiff's  elder  equity  shall, 
prevail,  unless  the  defendant  can  shelter  himself  under  the 
legal  title  acquired  by  one  whose  conscience  was  not  affected 
with  fraud  or  notice,  and  who  can  impart  his  immunity  to  a 
guilty  purchaser,  as  the  representative  of  his  legal  rights  fairly 
acquired  by  deed,  in  such  a  manner  as  exempts  him  from  the 
jurisdiction  of  a  court  of  equity.     Such  a  purchase  affixes  no 
stain  on  the  conscience,  and  equity  cannot  disturb  the  legal 
title.     But  as  it  does  not  pass  by  a  contract  of  purchase  with- 
out deed,  the  defendant  can  acquire  only  an  equity,  the  trans- 
fer of  which  does  not  absolve  him  from  the  consequences  of 
his  first  fraudulent  purchase.   Ilis  second  purchase  of  an  equity 
will  not  avail  him  more  than  the  first,  for  the  original  notice 
of  the  plaintiff's  equity  taints  his  conscience,  so  as  to  make 
him  a  mere  trustee,  if  he  holds  the  legal  title  from  one  who  is 
not  an  innocent  hona  fide  purchaser." 

§  169.  (6)  A  plea  of  title  in  the  defendant.—  If  the  de- 
fendant has  a  title  paramount  to  the  plaintiff's  title  he  may 
plead  it  in  bar.  The  cases  in  which  this  plea  is  applicable  have 
generally  been  grouped  under  three  heads: 

(1)  Where  the  defendant's  title  is  founded  upon  a  will;  or 

(2)  On  a  conveyance;  or 

(3)  On  a  long  peaceable  possession  of  the  p-roperty. 
A  plea  of  adverse  possession  is  of  this  class. 

iSpicer  v.  Waters,  65  Barb.  (N.  Y.)  331.  2  ]0  Pet.  (U.  S.)  209. 


I  169.]  DEFENSES  BY  'PLEA.  219 

(1)  The  first  classification  comprises  those  cases  which  arise 
between  devisees  claiming  under  the  will  and  heirs  at  law 
who  seek  to  establish  their  right  and  title  to  the  devised 
property.^ 

(2)  The  second  classification  may  be  illustrated  by  cases 
where  the  complainant  files  his  bill  to  set  aside  a  deed  of  con- 
veyance, alleging  that  its  execution  and  delivery  was  obtained 
by  fraud ;  the  defendant  may  plead  a  paramount  title  by  an- 
other deed. 

"  In  all  pleas  of  title,"  says  Daniell,  "  whether  derived  under 
a  will  or  a  deed,  if  the  defendant  is  not  the  person  taking  im- 
mediately under  the  will  or  deed,  but  derives  his  title  through 
others,  the  title  of  the  defendant  must  be  deduced  from  the 
person  immediately  taking,  by  proper  averments  in  the  plea. 
And  in  all  cases  it  is  necessary,  whether  the  title  be  derived 
from  adverse  possession,  or  from  a  will  or  conveyance,  to  show 
that  it  had  a  commencement  anterior  to  that  of  the  plaintiff  s 
title,  as  shown  by  the  bill ;  a  title  posterior  to  that  of  the  plaint- 
iff will  not  avail  as  a  plea,  unless  it  be  some  way  connected 
with  the  plaintiff's  title." 

(3)  A  plea  of  title  founded  upon  peaceable  possession  of 
the  property  is  eminently  an  equitable  defense.  Courts  of 
justice  will  not  countenance  laches  and  long  continued  delay 
on  the  part  of  claimants,  and  it  may  be  said  to  be  the  policy 
of  the  law  to  give  quiet  and  repose  to  titles.  To  this  end 
statutes  of  limitations  have  been  enacted  which  give  to  courts 
of  law  jurisdiction  and  govern  their  judgments  in  such  cases. 
But  when  the  case  is  not  within  the  remedies  of  the  law 
courts,  courts  of  equity,  recognizing  the  injustice  of  disturbing 
long  continued  and  peaceable  possession,  will  afford  it  such 
possessory  remedy.  And  so  after  a  long  lapse  of  time,  during 
which  the  possession  of  the  property  has  been  peaceable  and 
uninterrupted,  the  equity  court,  recognizing  such  a  title  to  be 
equitable  and  just,  will  not  allow  it  to  be  disturbed. 

The  chancellor,  in  Arden  v.  Arden^  invoking  this  equitable 
principle,  said:  "  There  is  no  legal  bar  by  force  of  the  statute 
of  limitations  to  a  legacy;  it  cannot  be  pleaded,  but  still  the 
court,  justly  averse   to  giving  countenance  to  very  stale  de- 

1 1  Danl.  Ch.  PL  &  Pr.  673  and  notes;  '  1  Johns.  Ch,  317,  335;  Higgins  v. 
Story,  Eq.  PI.  812;  Mitf.  Eq.  PI.,  by  Crawfurd,  2  Ves.  571;  Stookhouse  v. 
Jeremy,  263;  Cooper,  Eq.  PI.  288,  289.     Barnstone,  10  Ves.  466,  467. 


220  DEFENSES  BY  PLEA.  L^§  170,  ITL 

mancls,  adopts  the  provisions  of  the  statute  as  a  guide  in  the 
exercise  of  its  discretion." 

Chief  Justice  Marshall,  speaking  for  the  supreme  court  of 
the  TJnited  States  in  Elmerdorf  v.  Taylor,^  said:  "From  the 
earliest  ages,  courts  of  equity  have  refused  their  aid  to  those 
who  have  neglected,  for  an  unreasonable  length  of  time,  to 
assert  their  claims,  especially  where  the  legal  estate  has  been 
transferred  to  purchasers  without  notice.  Although  the  stat- 
utes of  limitations  do  not,  either  in  England  or  in  these  states, 
extend  to  suits  in  chancery,  yet  the  courts  in  both  countries 
have  acknowledged  their  obligation.  Their  application,  we 
believe,  has  never  been  controverted." 

§  270.  Pleas  to  the  discovery  sought.— Whether  the  dis- 
covery sought  be  by  bill  of  discovery  or  by  bill  for  relief  and 
discovery,  the  discovery  prayed  for  may  often  be  met  by  plea. 
As  we  have  seen,  in  certain  cases  where  it  clearly  appears 
from  the  allegations  in  the  bill  that  the  complainant  is  not  en- 
titled to  the  discovery  asked  for,  the  defendant  may  demur  to 
that  part  of  the  bill.^  And  where  from  the  bill  it  appears  that 
the  complainant  is  not  entitled  to  the  relief  sought,  a  demur- 
rer may  be  successfully  interposed  to  the  whole  bill,  which, 
when  sustained,  will  relieve  the  complainant  from  making 
such  discovery;  and  a  plea  which  is  successfully  interposed  to 
the  bill  generally  goes  to  the  discovery  as  well  as  to  the  relief, 
and  the  defendant  is  relieved  from  making  discovery  by 
answer.  When  from  the  allegations  of  the  bill  it  does  not  ap- 
pear that  the  defendant  should  be  excused  from  making  dis- 
covery, but  in  fact  he  ought  to  be,  and  the  defendant  is  able 
by  proofs  to  so  show,  he  may  raise  the  issue  by  plea  to  that 
part  of  the  bill  which  seeks  discovery. 

§  171.  The  several  grounds  of  pleas  to  discovery. —  The 
several  grounds  of  pleas  to  bills  of  discovery,  or  discovery 
sought  in  bills  for  relief,  are  similar  to  those  already  discussed 
under  pleas  in  abatement  and  pleas  in  bar.     They  are: 

(1)  Pleas  to  the  jurisdiction; 

(2)  Pleas  to  the  person; 

(3)  Pleas  to  the  bill  or  frame  of  the  bill,  and 

(4)  Pleas  in  bar. 

1 10  Wheat.  (U.  S.)  168.     In   Gould  cases     of     asserted    fraud,    if   the 

V.  Gould,  3  Story,  516,  536,  the  court  plaintiff    has   been    guilty  of  gross 

say:     "A  court  of  equity  will  never  laches  or  unreasonable  delay." 

entertain  a    bill    for  re'ief  even  in  2^jj;e^gii9 


DEFENSES  BY  PLEA.  ^21 


§  ni.] 

(1)  Pleas  to  the  jurisdiction.  Where  the  court  of  equity  has 
no  jurisdiction  or  authority  to  compel  a  discovery  in  the  \r.\v- 
ticuhir  case  made  by  the  bill,  and  the  want  of  jurisdiction  or 
authority  does  not  appear  upon  the  face  of  the  bill,  the  defend- 
ant may  raise  the  question  by  a  plea.  "  Among  them,"  says 
Judge  Story ,1  "are  the  objections  that  the  subject  of  the  suit 
is  of  a  political  nature;  that  another  court  is  competent  to- 
give  the  discovery,  or  that  the  tribunal,  or  the  cause,  is  not  of 
such  a  character  as  the  court  will  aid  by  a  discovery;  as  if  the 
cause  be  before  arbitrators,  or  be  of  a  criminal  nature;  or  the 
plaintiflf  has  no  title  or  interest  in  the  suit."^ 

(2)  Pleas  to  the  person.  These  pleas  go  to  the  right  of  the 
plaintiff,  or  his  title  or  ability  to  call  on  the  defendant  for  dis- 
covery; or  that  the  defendant  is  not  liable  and  should  not  be 
compelled  to  make  the  discovery;  as  where  the  plaintiff  has 
no  title  to  the  character  which  he  assumes  in  the  bill  of  dis- 
covery. As,  for  example,  where  he  brings  suit  as  an  adminis- 
trator, as  an  executor,  a  partner,  a  creditor,  or  a  trustee,  the 
defendant  by  plea  may  deny  that  he  is  entitled  to  assume  or 
sue  in  that  character;  or  may  plead  that  the  plaintiff  is  an 
idiot,  a  lunatic  or  a  bankrupt;  that  the  defendant  has  no  in- 
terest in  the  subject-matter  of  the  suit;  that  he  does  not  sus- 
tain the  character  in  which  he  is  impleaded  in  the  case,  as  ad- 
ministrator, executor,  heir,  trustee  or  partner;  or  that  there  is 
want  of  privity  between  him  and  the  party  plaintiff.  In  in- 
terposing this  plea  it  may  become  necessary  to  accompany  it 
with  an  answer  meeting  the  allegations  in  the  bill  which  re- 
late to  the  subject  of  the  plea. 

(3)  Pleas  to  the  Mil  or  frame  of  the  hill.  The  authorities 
are  not  entirely  harmonious  as  to  when  this  particular  plea 
may  be  interposed.  It  is  said  that  when  discovery  of  facts  to 
aid  the  complainant  in  a  suit  at  law  is  sought  and  the  parties 
complainant  are  not  parties  to  the  suit  at  law,  and  this  does 
not  appear  upon  the  face  of  the  bill,  that  this  plea  might  be 
interposed;  or  where  the  bill  of  complaint  is  multifarious,  as 
in  such  case  the  defendant  would  be  compelled  to  give  answer 
and  discovery  to  matters  wholly  distinct  and  independent  and 
which  would  not  belong  to  any  single  suit  either  at  law  or  in 
equit}'.^ 

1  Story,  Eq.  PI.  817.  '  See  note  4,  sec  820,  Story.  Eq.  PI. 

2  Mitf.  Eq.  PL,  by  Jeremy,  154,  231,  "Lord  Redesdale  says  (Mitf.  Eq.  PI., 
233,  ^82.  by  Jeremy,  300,  201)  that  a  demurrer 


222  DEFENSES  BY  PLEA.  [§  172. 

(4)  Pleas  in  lav.  The  pleas  which  are  peculiarly  appro- 
priate to  this  class  of  bills  are  those  where  it  would  be  clearly 
improper  for  a  court  of  equity  to  compel  the  discovery  sought; 
as  where  to  make  the  discovery  would  subject  the  defendant 
to  pains  or  penalties  or  a  criminal  prosecution;  or  where  he 
would  be  subjected  to  a  forfeiture,  or  something  in  the  nature 
of  a  forfeiture;  or  where  it  would  be  the  betraying  of  pro- 
fessional confidence  reposed  in  him  as  counselor,  attorney, 
solicitor,  priest  or  clergyman;  or  where  he  is  a  purchaser  for 
a  valuable  consideration  without  notice,  for  a  court  of  equity 
will  not  compel  a  defendant  to  make  discovery  which  would 
affect  his  own  title;  but  whenever  it  is  sought  to  take  advan- 
tao-e  of  any  of  these  privileges  they  must  be  clearly  shown  to 
exist. 

§  172.  The  frame  of  the  plea.— The  plea  must  aver  every 
fact  requisite  to  the  defense  which  is  invoked ;  as,  for  example, 
if  it  be  that  the  defendant  is  a  honafide  purchaser  of  the  prop- 
erty, the  purchase  and  holding  of  the  property  must  be 
averred;  that  the  defendant  purchased  of  one  lawfully  seized, 
or  possessed  of  the  property,  or  claiming  to  be  so  seized,  and 
havino-  every  indicia  of  ownership  of  the  title  purchased,  the 
title  purchased  and  the  evidence  of  such  title.  If  his  purchase 
is  evidenced  by  deed,  then  the  lawful  execution  of  the  same, 
the  parties  to  it  and  the  property  conveyed.  If  evidenced  by 
an  executed  contract,  or  other  evidence  of  title,  the  execution 
of  the  same  and  the  substance  of  it;  that  the  consideration 
was  a  valuable  consideration;  that  it  was  hona  Jide  3ind  truly 
paid  without  notice  of  the  plaintiff's  claim,  for  a  consideration 
secured  to  be  paid  is  not  sufficient.  And  it  has  been  held  that 
*'  the  plea  must  aver  not  only  a  want  of  notice  at  the  time  of 

will  not  lie  to  a  bill  of  discovery  be-  fendants  in  one  bill.    ...     It  may 

cause  the  bill  has  split  matters,  and  also  be  proper  to  remark  that  a  bill 

is  brought  for  the  discovery  of  part  is    demurrable    if    it    prays    relief 

of  a   matter  only,    for  such   a   de-  against  some  of  the  defendants,  and 

murrer  would  only  amount   to  an  a     discovery    only    against    others, 

objection  that  the  discovery  would  And   the    objection    of  a    want   of 

be  insufficient.     But  he  adds,  that  it  interest  in  a  defendant  equally  ap- 

should    seem   that  a   demurrer  for  plies,  whether  he  is  the  sole  defend- 

multifariousness   would    hold    to   a  ant,  or  is  joined  with  other  defend- 

bill  of  discovery  for  several  distinct  ants." 
matters  against  several  distinct  de- 


I  172.] 


DEFENSES  BY  PLEA. 


223 


the  purchase,  but  also  at  the  time  of  its  completiou,  and  of 
the  payment  of  the  money.  The  money  (or  consideration  for 
the  property)  must  have  been  actually  paid  before  notice.  If 
a  part  has  been  paid  and  a  part  remains  unpaid,  the  purchaser 
will  be  protected  in  what  he  has  paid,  but  not  in  any  subse- 
•quent   payments  made  by  him."  ^     All  facts  which  are  neces- 


1  Thomas  v.  Graham,  Walk.  Ch. 
(Mich.)  117,  118.  In  Danl.  Ch.  PI.  & 
Pr.  675,  679, the  author  says:  "Some 
doubt  was  entertained  whether  a 
pita  of  purchase  for  valuable  con- 
sideration will  avail  against  a  legal 
titla  The  point  has  been  fully  dis- 
cussed by  Lord  St.  Leonards  in  his 
'Treatise  of  tiie  Law  of  Vendors  and 
Purchasers,"'  and  it  seems  now  to  be 
settled  that  there  are  cases  in  which 
this  defense  may  be  so  pleaded. 

•'The  rules  for  the  guidance  of  a 
pleader  in  framing  pleas  of  this  de- 
scription have  been  so  clearly  and 
succinctly  laid  down  by  the  learned 
author  of  the  treatise  last  referred 
to,  that  it  apijears  to  be  the  best 
course,  on  the  present  occasion,  to 
call  the  reader's  attention  to  the  fol- 
lowing extracts  from  that  valuable 
work,  namely:  'The  plea  must  state 
the  deeds  of  purchase;  setting  forth 
the  dates,  parties  and  contents, 
briefly,  and  the  time  of  their  execu- 
tion; for  that  is  the  peremptory 
matter  in  bar.' 

•'  It  must  aver  that  the  vendor 
was  seised,  or  pretended  to  be  seised, 
at  the  time  he  executed  the  convey- 
ance. In  Carter  v.  Pritchard  it  was 
held  that  the  plea  of  a  purchase 
without  notice  must  aver  the  de- 
fendant's belief  that  the  person  from 
whom  he  purchased  was  seised  in  fee. 
If  it  be  charged  in  the  bill  that  the 
vendor  was  only  tenant  for  life  or 
tenant  in  tail,  and  a  discovery  of  the 
title  be  prayed,  such  a  discovery 
cannot  be  covered,  unless  a  seisin  is 
sworn  in  the  manner  already  men- 
tioned, or  that  such  fines  and  recov- 


eries were  levied  and  suffered  as 
would  bar  an  entail  if  the  vendor 
was  tenant  in  tail;  for  if  a  purchase 
by  lease  and  release  should  be  set 
forth,  which  would  pass  no  more 
from  the  tenant  in  tail  than  it  law- 
fully may  pass,  and  that  is  only  an 
estate  for  the  life  of  the  tenant  in 
tail,  then  there  is  no  bar  against  the 
issue.  Where,  however,  a  fine  was 
pleaded,  the  plea  must  have  averred 
an  actual  seisin  of  a  freehold  in  the 
vendor,  and  not  that  he  was  seised 
or  pretended  to  be  seised. 

"If  the  convej'ance  pleaded  be  of 
an  estate  in  possession,  the  plea  must 
aver  that  the  vendor  was  in  posses- 
sion at  the  time  of  the  execution  of 
the  conveyance.  And,  if  it  be  of  a 
particular  estate  and  not  in  posses- 
sion, it  must  set  out  how  the  vendor 
became  entitled  to  the  reversion. 
But,  although  a  bill  be  brought  by 
an  heir,  the  plea  need  not  on  that  ac- 
count aver  the  purchase  to  be  from 
the  plaintiff's  ancestor. 

"The  plea  must  also  distinctly 
aver  that  the  consideration  money 
mentioned  in  the  deed  wasbonafide 
and  truly  paid,  independently  of  the 
recital  of  the  purchase  deed;  for  if 
the  money  be  not  paid,  the  plea  will 
be  overruled,  as  the  purchaser  is  en- 
titled to  relief  against  payment  of  it. 
The  particular  consideration  must,  it 
should  seem,  be  stated,  although  this 
point  has  been  decided  otherwise. 
There  can,  however,  be  no  objection 
to  state  the  consideration ;  as,  if  it  be 
valuable,  the  plea  will  not  be  invali- 
dated by  mere  inadequacy.  The 
question  is,  not  whether  the  consid- 


224 


DEFENSES  BY  PLEA. 


[§  172. 


sary  to  render  the  plea  a  complete  equitable  bar  to  the  case 
made  by  the  bill  so  far  as  the  plea  extends  must  be  clearly 
and  distinctly  averred  in  order  that  the  plaintiff  may  take  issue 
upon  it  if  he  desires  to  do  so. 


eration  is  adequate,  but  whether  it 
is  valuable;  for  if  it  be  such  a  con- 
sideration as  will  not  be  deemed 
fraudulent  within  the  statute  27th 
Elizabeth,  or  is  not  merely  nominal, 
or  the  purchase  is  such  a  one  as 
would  hinder  a  puisne  purchaser 
from  overturning  it,  it  ought  not  to 
be  impeached  in  equity. 

"The  plea  must  also  deny  notice 
of  the  plaintiff's  title  or  claim,  pre- 
viously to  the  execution  of  the  deed 
and  payment  of  the  purchase-money; 
for.  till  then,  the  transaction  is  not 
complete;  and  therefore,  if  the  pur- 
chaser have  notice  previously  to 
that  time,  he  will  be  bound  by  it. 
And  notice  so  denied  must  be  notice 
of  the  existence  of  the  plaintiff's  title 
and  not  merely  notice  of  the  exist- 
ence of  a  person  who  could  claim 
under  that  title.  But  a  denial  of 
notice,  at  the  time  of  making  the 
purchase  and  paying  the  purchase- 
money  is  good;  and  notice  before 
the  purchase  need  not  be  denied; 
because  notice  before  is  notice  at  the 
time  of  the  purchase:  and  the  party 
will,  in  such  case,  on  its  being  made 
to  appear  that  he  had  notice  before, 
be  liable  to  be  convicted  of  per- 
jury. 

"The  notice  must  be  positively  and 
not  evasively  denied,  and  must  be 
denied  whether  it  be  or  be  not 
charged  by  the  bill.  If  particular 
instances  of  notice  or  circumstances 
of  fraud  are  charged,  the  facts  from 
which  they  are  inferred  must  be 
denied  as  specially  and  particularly 
as  charged.  So,  if  the  bill  charges 
that  the  purchaser  has  in  his  posses- 
sion certain  papers  and  documents, 
whence  it  will  appear  that  his  was 
not  a  purchase  without  notice,  the 


defendant  is  bound  to  support  his 
plea  by  an  answer  to  that  charga 

"  But  he  need  only  by  his  plea  deny 
notice  generally,  unless  where  facts 
are  specially  charged  in  the  bill  as 
evidence  of  notice. 

"Notice  must  also  be  denied  by 
answer;  fortiiat  is  matter  of  fraud 
and  cannot  be  covered  by  the  plea; 
because  the  plaintiff  must  have  an 
opportunity  to  except  to  its  suffi- 
ciency if  he  think  fit;  but  it  must 
also  be  denied  by  the  ]»lea;  because, 
otherwise,  there  is  not  a  complete 
plea  in  court  on  which  the  plaintiff 
may  take  issue.  Although  a  pur- 
chaser omit  to  deny  notice  bj'  answer 
he  will  be  allowed  to  put  in  the  point 
of  notice  by  way  of  answer,  and  the 
omission  will  not  invalidate  his  plea, 
if  it  is  denied  by  that.  If  notice  is 
omitted  to  be  denied  by  the  pL  a,  and 
the  plaintiff  reply  to  it,  the  defend- 
ant has  then  only  to  prove  his  pur- 
chase: and  it  is  not  material  if  the 
plaintiff  do  prove  notice,  as  he  has 
waived  setting  down  the  plea  for 
argument;  in  which  case  it  would 
have  been  overruled."  Story,  Eq.  PI. 
805,  806. 

In  Haughwout  v.  Murphy,  22  N.  J. 
Eq.  581,  547,  the  court  say:  "The  de- 
fense of  a  bona  fide  purchase  may  be 
made  Vjy  plea,  in  bar  of  discovery  and 
relief,  or  by  answer,  in  bar  of  relief 
only.  If  made  by  plea,  the  payment 
of  the  whole  of  the  consideration 
money  must  be  averred.  An  aver- 
ment that  part  was  paid  and  the 
balance  secured  by  mortgage  will 
not  be  sufficient.  Wood  v.  Mann.  1 
Sumn.  506.  Proof  of  the  payment  of 
the  whole  purchase-money  is  essen- 
tial to  the  defense,  whether  it  be- 
made  by  plea  or  answer.     Jewett  v. 


§  173.] 


DEFENSES  BY  PLEA. 


225 


§  173.  When  the  plea  must  be  supported  by  an  answer. — 

If  the  plaintiff  in  his  bill  of  complaint,  anticipating  the  defense, 
should  aver  facts  that  would  defeat  the  plea,  as,  for  example,  in 
the  cases  last  discussed,  that  the  defendant  had  notice  of  the 
plaintiff's  title  and  was  not  a  bona  fide  purchaser,  but  fraudu- 
lently acquired  the  title  he  claims,  and  setting  forth  the  cir- 
cumstances and  facts  upon  which  the  averment  of  fraud  is 
based,  that  the  consideration  was  not  paid  by  the  defendant, 
or  was  not  paid  until  after  notice  of  the  plaintiff's  claim, — 


Palmer,  7  Johns.  Ch.  05;  Malony  v. 
Kernan,  2  Drury  &  Warner,  31 ;  Losey 
V.  Simpson,  3  Stockt  246.  Notice 
befoi'e  actual  payment  of  all  the  pur- 
chase-money, although  it  be  secured 
and  the  conveyance  executed,  or  be- 
fore the  execution  of  the  conveyance, 
notwithstanding  the  money  is  paid, 
is  equivalent  to  ncti  e  before  the 
contract  2  Sug.  V.  &  P.  533  (1037); 
Hill  on  Trustees.  105.  If  the  defend- 
ant has  1  aid  part  only,  he  will  be 
protected  pro  tanto  only.  1  Story's 
Eq.,  sec.  64c;  Story,  Eq.  PI.,  sec.  604a. 

"  What  the  measure  of  relief  shall 
be  in  cases  where  the  deed  has  been 
executed  and  delivered  and  part  of 
the  purchase-money  paid  before 
notice  of  the  previous  contract  to 
sell  to  another  was  elaborately  dis- 
cussed by  the  counsel  of  the  appel- 
lants. The  chancellor  held,  under 
the  authority  of  Flagg  v.  Mann,  2 
Sumn.  487,  that  a  contract  of  pur- 
chase, executed  by  delivery  of  the 
deed  and  payment  of  part  of  the 
purchase-money  without  notice  of 
the  previous  contract,  gave  the  pur- 
chaser a  right  to  hold  the  land,  and 
that  the  equity  of  the  person  with 
whom  the  j)reviou3  contract  was 
made  was  merely  to  have  the  unpaid 
purchase-money. 

"The  law  of  the  English  court  is, 
that  until  the  defense  of  a  bona  fide 
purchase  is  perfected  by  the  delivery 
of  the  deed  of  conveyance,  and  the 
payment  of  the  entire  consideration 
15 


money,  such  purchaser  is  without 
any  protection  as  against  the  estate 
of  the  equitable  owner  under  a  prior 
contract,  even  though  he  contracted 
to  purchase,  and  accepted  his  deed 
and  paid  partof  the  purchnse-money 
in  gooii  faith;  his  only  remedy  being 
against  his  vendor  to  recover  back 
what  he  had  paid  on  a  consideration 
which  has  failed.  In  some  of  the 
American  courts  this  doctrine  has 
been  qualified  to  the  extent  of  en- 
forcing specific  performance  of  tie 
prior  contract,  on  condition  that  the 
purchaser  shall  be  indemnified  for 
the  purchase-money  paid,  and  also 
for  permanent  improvements  put 
upon  the  property  before  notice,  on 
the  principle  tliat  he  who  asks  equity 
must  do  equity.  The  cases  are  col- 
lected in  2  Lead.  Cas.  in  Eq.  1;  notes 
to  Basset  v.  Nosworthy. 

"The  doctrine  of  the  English 
courts  is  necessary  to  give  effect  to 
the  principle  that  in  equity,  imme- 
diately on  the  contract  to  purchase, 
an  equitable  estate  arises  in  the  ven- 
dee, the  legal  estate  remaining  in 
the  vendor  for  his  benefit.  Qualified 
by  the  obligation  to  make  compen- 
sation to  any  subsequent  bona  fide 
purchaser,  who  has  paid  part  only  of 
the  consideration  money,  for  all  dis- 
bursements made  before  notice,  the 
rule  is  every  way  consonant  with 
correct  principles.  Such  indemnity 
is  protection  j^fo  tanto."  Grifhth  v. 
Griffith,  Hoff.  Ch.  (N.  Y.)  153. 


22G  DEFENSES  BY  PLEA.  [§  1'<'3 

in  such  case  the  delendant  must  not  only  deny  the  allegations 
thus  mado  in  the  bill,  but  must  file  an  answer  in  support  of 
liis  plea.  And  so  in  every  case  where  the  bill  anticipates  the 
defense  set  up  in  the  plea,  it  is  necessary  for  the  defendant  not 
only  to  meet  the  averments  of  the  bill  in  his  plea,  but  also  to 
support  his  plea  by  an  answer;  for  it  is  said  that  the  complainant^ 
having  alleged  facts  and  circumstances  in  his  bill  that  would 
defeat  the  defense  made  by  the  plea,  is  entitled  to  an  answer 
to  such  averments  and  the  privilege  of  exceptions  to  the  an- 
swer of  the  defendant.^  It  may  be  laid  down  as  a  general 
rule  that  all  pleas  that  are  not  pure  pleas  must  be  supported 
bv  an  answer;  for  if  the  bill  of  complaint  contain  allegations 
of  fact  which  if  true  would  overcome  the  plea,  these  facts 
must  be  denied  in  the  plea  itself,  and  also  in  an  answer  in  sup- 
port of  the  plea.  The  plea  must  be  complete,  containing  all 
the  necessary  allegations  of  fact  and  completely  denying  the 
allegations  in  the  bill  as  to  the  defense  raised,  and  it  must  also 
be  supported  by  an  answer  denying  any  allegations  which 
would  atfect  the  defense  made  by  the  plea  or  it  cannot  be 
sustained. 

In  Harrison  v.  Farrington"^  it  was  said:  "The  general  rule 
is  that  when  the  defendant,  at  the  same  time,  sets  up  the  same 
defense  both  by  answer  and  y)lea  in  bar,  the  former  overrules 
the  latter.  The  reason  is  that  by  interposing  the  plea  he 
claims  that  he  ought  not  to  be  required  to  answer,  and  yet  at 
the  same  time  does  answer.  But  where  ...  the  bill  an- 
ticipates the  bar  and  alleges  facts  to  avoid  it,  an  answer  is 

I  In  story's  Eq.  PI.,  sec.  806,  the  denial  by  a  plea  of  all  notice  wliat- 

author  says:  "  If  particular  instances  soever  includes  constructive  as  well 

of  notice,  or  circumstances  of  fraud,  as  actual  notice.     It  is  not  the  office 

are  charged,  they  must  be  denied  as  of  a  plea  to  deny  particular  facts 

specially  and  particularly  as  charged  of  notice,   even   if  such    particular 

in  the  bill.    The  special  and  particu-  facts  are  charged.     Notice  or  fraud 

lar  denial  of  notice  of  fraud  must  be  thus  put  in   issue,   if    proved,    will 

by  way  of  answer,  that  the  plaintiff  effectually    open    the    plea    at    the 

may  be  at  liberty  to   except  to  its  hearing  of  the  cause." 

sufficiency.    But  the  notice  of  fraud  2  38  N.  J.  Eq.  358.  361 ;  Ferguson  v. 

must  also  be   denied   generally   by  O'Harra,  1  Pet.  C.  C.  493;  Lang.  Eq. 

way  of  averment  in  the  plea,  other-  PI.,  sec.   105;  Mitf.   Ch.  PI.  244,  298; 

wise  the  fact  of  notice  or  of  fraud  Story,  Eq.  PI.  684;  Bogardus  v.  Trin- 

will  not  be  in   issua     The  general  ity  Church,  4  Paige,  178,  195. 


007 
^  I'lS.']  DEFENSES  BY  PLEA.  ^'^ ' 

necessary,  in  suhsidium,  to  support  the  plea.  In  such  case  it 
is  proper  not  only  that  the  plea  should  contain  all  necessary 
averments  to  overthrow  those  allegations,  but  the  defendant 
must  support  his  plea  by  an  answer,  also  denying  those  a llega- 
tions  'A  plea  should  be  drawn,'  says  Professor  Langdell,  in 
the  same  manner,  whether  it  requires  the  support  of  an  an- 
swer or  not;  i.  e.,  if  it  is  a  defense  to  the  whole  bill,  it  should 
be  pleaded  to  the  whole  bill,  and  then  the  answer  should  give 
such  discovery  as  the  plaintiff  is  entitled  to  for  the  purpose  of 
trying  the  truth  of  the  plea.'  "  ,,..*«• 

In  the  United  States  court  it  is  provided  by  rule'  that  in 
every  case  in  which  the  bill  specially  charges  fraud  or  combi- 
nation, a  plea  to  such  part  must  be  accompanied  with  an  an- 
swer fortifying  the  plea,  and  explicitly  denying  the  fraud  and 
combination  and  the  facts  on  which  the  charge  ^^  foumled. 

Professor  Langdell  very  clearly  states  the  rule:^      If  the 
defense  which  is  set  up  by  a  plea  has  been  anticipated  by  the 
bill  and  evidence  has  been  charged  in  disproof  of  the  defense, 
the  defendant  must  answer  such  charges  of  evidence,  notwith- 
standing his  plea,  for  an  answer  to  that  extent  will  be  needed 
in  tryin.r  the  truth  of  the  plea.     The  defendant,  therefore,  in- 
corporat°es  an  answer  with  his  plea,  and  then  the  answer  is 
said  to  support  the  plea.     Such  an  answer,  it  will  be  observed, 
contains  discovery  only,  and  it  is  called  an  answer  in  support 
of  a  plea,  to  distinguish  it  from  the  case  where  a  defendant 
defends  by  answer  as  to  part  of  the  bill,  and  by  plea  as  to 
part      "  If  a  bill  anticipates  a  defense,  and,  without  admittmg 
ite  truth,  replies  to  it  alfirmatively,  and  the  defendant  wishes 
to  set  up  the  defense  bv  plea,  it  is  obvious  that  he  must  traverse 
the  anticipatory  replication;   for  otherwise,  in   the  event  of 
issue  beinc.  taken  upon  the  truth  of  the  plea,  the  affirmative 
replication  will  be  admitted  to  be  true.     A  negative  rejoinder, 
therefore,  must   be    incorporated  with   the   affirmative   plea. 
Such  pleas  have  become  common  in  modern  times;  and  being 
partly  affirmative  and  partly  negative  they  are  distinguished 
by  the  name  of  anomalous  pleas.     If  the  defendant  should  not 
b'e  prepared  to  deny  the  truth  of  the  affirmative  replication, 

1 U.  S.  Eq.  Rule  32.    2  Langdell's  Eq.  PL,  sec.  100 ;  1  Foster,  Fed.  Prac.  327. 


228  DEFENSES  BY  PLEA.  [§§  174,  175. 

and  should  wish  to  set  up  an  affirmative  answer  to  it,  of  course 
both  branches  of  his  plea  should  be  affirmative ;  but  no  instance 
of  such  a  plea  has  been  found  in  the  reported  cases.  If  an 
anomalous  plea  be  put  in  issue,  it  will  be  seen  that  each  party- 
has  something  to  prove;  namely,  the  defendant  his  affirmative 
defense,  and  the  plaintiff  his  affirmative  replication;  and  the 
plaintiff  is,  therefore,  entitled  to  discovery  as  to  the  latter. 
Consequently,  an  anomalous  plea  must  always  be  supported  by 
an  answer  as  to  the  allegations  which  constitute  the  replica- 
tion, and  as  to  all  charges  of  evidence,  if  an}',  in  support  of 
such  allegations." 

§  174.  The  answer  in  support  of  the  plea  no  part  of  the 
defense. —  The  answer  filed  in  support  of  the  plea  is  not  inter- 
posed as  part  of  the  defendant's  defense,  but  it  is  in  compliance 
with  requirements  growing  out  of  the  right  of  the  complain- 
ant to  have  an  answer  to  the  averments  made  in  his  bill  which 
would  avoid  the  defense  set  up  in  the  plea,  for  the  allegations 
of  such  an  answer  may  be  used  as  evidence  by  the  complain- 
ant upon  the  hearing.  The  facts  set  up  in  the  supporting 
answer  are  to  the  complainant  the  same  as  discovered  facts, 
and  he  may  use  them  as  proof  if  they  are  material  and  will 
assist  his  contention.  And  it  is  also  settled  that  the  court  will 
intend  all  matters  charged  in  the  bill  of  complaint  which  de- 
mand an  answer  and  are  not  fully  answered  by  the  defendant 
against  the  pleader.^  It  therefore  follows  that  the  answer 
must  be  full  and  clear,  and  sufficient  to  support  the  plea,  so 
that  the  court,  if  the  facts  are  not  fully  alleged  by  the  com- 
plainant, may  found  a  decision  and  a  decree  upon  the  plea  and 
supporting  answer. 

§  175.  The  form  of  a  plea. —  There  is  no  fixed  form  of  plea 
to  the  bill  in  equity;  there  are  certain  requisites  that  should 
be  incorporated  which  we  have  from  time  to  time  mentioned. 
There  are  certain  approved  forms  which  are  more  or  less  ad- 
hered to,  but  these  forms  can  no  doubt  be  very  much  abridged 
and  still  be  sufficient.  The  subsiance  of  the  plea  depends  en- 
tirely upon  the  substance  of  the  defense,  and  so  it  would  be 

1 1  Barb.    Ch.    168.     In   Heartt   v.  the  defendant  need  not  support  his 

Corninpc,  3  Paige  (N.  Y.),  566,  it  was  plea  by  an  answer;  but  this  rule  was 

held  that  if  the  complainant  in  his  because  of  the  statutes  applicable  in 

bill  waives  an  answer  under  oath,  that  stata 


§  175.] 


DEFENSES  BY  PLEA. 


229 


diflBcult  to  lay  down  any  general  form  to  be  followed.  The 
followino-  is  a  form  of  a  plea  of  release  showing  its  several 
parts : 

State  of  Michigan. 

1st.  Titieof  court  The  Circuit  Court  for  the  County  of  Wayne.    In 

Chancery. 

John  Jones,  Complainant,     ) 
2d.  Title  of  cause.  V.  >  Defendant's  Plea. 

William  Smith,  Defendant.   ) 

The  plea  of  William  Smith,  the  above  named 
8d.  Title  of  plea,    defendant,  to  the  bill  of  complaint  of  John  Jones, 
the  comphiinaht. 

This  defendant  [or,  if  more  than  one,  these  de- 
fendants], by  protestation,  not  confessing  or  ac- 
knowledging  all,   or   any,  of   the    matters   and 
4th.  Protestation  thinoT  in  the  said  complainant's  bill  of  complaint 
dauae.  mentioned  and  contained  to  be  true  in  such  man- 

ner and  form  as  the  same  are  therein  set  forth 
and  alleged,  for  plea  [to  the  whole  of  said  bill  or 
to  whatsoever  part  he  desires  to  plead,  designat- 
ing it],  says: 

As  to  so  much  and  such  part  of  the  said  com- 
plainant's bill  as  seeks  an  accounting  of  and  con- 
cerning the  dealings  and  transaction  therein  al- 
leged to  have  taken  place  between  the  said  plaint- 
iff and  said  defendant  at  the  time  and  in  the 
manner  therein  set  forth,  this  defendant  for  plea 

thereto  says :  That  on  the day  of ,  which 

was  prior  to  the  time  of  the  tiling  of  the  said  bill, 
the  said  plaintiff  and  this  defendant  did  make  up, 
state,  and  settle  an  account  in  writing,  a  counter- 
part whereof  has  been  delivered  to  the  said  plaint- 
iff, of  all  sums  of  money  which  this  defendant 
had  before  that  time  by  the  order  and  direction 
and  for  the  use  of  the  said  plaintitf  received,  and 
of  all  matters  and  things  thereunto  relating,  or 
at  any  time  before  the  said  day  depending  be- 
tween the  plaintiff  and  defendant.  And  the  said 
5th.  Body  or  Stat-  defendant  alleges  that  the  plaintiff,  after  a  strict 
ing  part  of  bill,  examination  of  the  said  account  and  every  item 
and  particular  thereof,  which  this  defendant 
avers  and  believes  to  be  just  and  true,  did  approve 
and  allow  the  same,  and  actually  received  from 

this  defendant  the  sum  of dollars,  the  balance 

of  said  account,  which  by  the  said  account  ap- 
peared to  be  justly  due  to  him  from  this  defend- 
ant; and  the  said  plaintiff  thereupon,  and  on  the 


230  DEFENSES  BY  PLEA.  [§  lTi3. 

tlay  of  gave  to  this  defendant  a   re- 


ceipt or  acquittance  for  the  same,  under  his  hand, 
in  full  of  all  demands,  and  which  said  receipt  or 
acquittance  is  in  the  words  and  figures  following 
(that  is  to  say):  {here  state  the  receipt  verhaiini\ 
as  by  the  said  receipt  or  acquittance,  now  in  the 
possession  of  this  defendant,  and  ready  to  be  pro- 
duced to  this  honorable  court,  will  appear. 

Therefore  this  defendant  pleads  the  said  receipt 
or  acquittance  above  set  forth  in  bar  to  the  said 
plaintiff's  bill  of  complaint  (or  to  so  much  of  the 
said  plaintiff's  bill  as  is  hereinbefore  mentioned), 
and  humbly  prays  the  judgment  of  this  honorable 
•th.  oondusioii.  court  wiiether  he  ought  to  be  compelled  to  make 
any  further  answer  to  so  much  of  the  said  bill  as 
is  before  pleaded  unto;  and  this  defendant,  not 
waiving  the  said  plea,  but  insisting  thereon,  for 
answer  to  the  residue  of  the  said  bill,  and  in  sup- 
port of  his  said  plea,  saith  he  denies  that  the  said 
release  was  unduly  obtained  by  this  defendant 
from  the  said  plaintitl",  or  that  the  said  plaintill" 
was  ignorant  of  the  nature  and  effect  of  such 
release,  or  that  the  consideration  paid  by  this  de- 
fendant to  induce  the  said  plaintiff  to  execute  the 
same  was  at  all  inadequate  to  the  just  claims  and 
demands  of  the  said  plaintiff  against  this  defend- 
ant, in  respect  of  the  several  dealings  and  trans- 
actions in  the  said  bill  mentioned,  or  any  of  them ; 
and  this  defendant  denies,  etc.  [here  denying  alle- 
gations in  the  bill  which  may  affect  his  pleaj. 
Prayer.  Wherefore   this  defendant  prays  to   be  hence 

dismissed  with  his  costs. 

,  Solicitor  for  Defendant. 

If  the  plea  is  to  a  part  of  the  bill  and  there  is  an  answer  to, 
a  part,  the  answer  may  be  introduced  as  follows: 

And  for  answer  to  such  parts  of  said  bill  as  are  excepted 
this  defendant  answering;  says:  [Here  setting  forth  his  answer 
to  the  said  parts  of  the  bill  paragraph  by  paragraph.] 

The  defendant  may,  when  it  is  required  that  an  answer 
should  accompany  the  plea,  file  a  separate  answer  setting  forth 
therein  that  it  is  in  support  of  the  plea  filed,  or  he  may  answer 
with  the  plea,  making  the  answer  a  part  of  the  same  docu- 
ment, designating  it  and  its  purpose.^ 

iln  1  Barb.  Ch.  Pr.  117,  it  is  said:  the  conclusion  of  the  plea.  If  the 
"Where  the  plea  is  accompanied  by  answer  is  merely  to  support  the  plea 
an  answer  the  answer  must  follow    it  is  stated  to  be  made  for  that  pur- 


§  176.] 


DEFENSES  BY  PLEA.  231 


As  a  general  rule  the  plea  need  not  be  sworn  to,  but  when 
the  plea  is  in  bar  of  matters  vajpaA,,  which  matters,  to  render 
the  defense  complete,  must  be  proved  at  the  hearing,  the  plea 
must  be  sworn  to.     It  has  been  very  clearly  stated  as  foUovvs: 
"Where  the  matter  of  the  plea  appears  upon  record  the  plea 
is  put  in  without  oath;  but  where  the  matter  of  the  plea  does 
not  so  appear  it  must  be  upon  oath.     In  consequence  of  this 
rule,  if  the  matter  pleaded  is  purely  matter  of  record,  or  in 
other  words,  which  may  be  proved  by  the  record,  the  oath  of 
the  party  is  not  necessary;   but  if  any  fact  in  jpais  is  intro- 
duced which  would  require  to  be  proved  at  the  hearing,  the 

plea  must  be  upon  oath."  ^  .  ,         ,    2    t*  4o  o 

In  the  United  States  courts  this  is  governed  by  rule,      it  is  a 
creneral  rule  applicable  to  all  jurisdictions  that  a  plea  must  have 
attached  to  it  a  certificate  of  counsel  interposing  it  that  in  his 
opinion  it  is  well  founded  in  law  and  supported  by  the  affidavit 
of  tlie  defendant  that  it  is  not  interposed  for  delay  merely,  and 
that  he  knows  and  has  good  reason  to  believe  it  to  be  true  in 
point  of  fact;  and  this  is  the  rule  in  many  of  the  state  courts. 
8  17G.  The  plaintiff's  reply.- The  plaintiff  may  meet  the 
plea  of  the  defendant  in  two  ways:  (1)  he  may  admit  the  facts 
upon  which  the  plea  is  based  to  be  true,  and  this  he  does  by 
settin-  the  case  down  for  argument,  or  noticing  it  for  hearing, 
according  to  the  practice  in  some  of  the  states.     Lpon  the 
hearing,  in  such  case,  he  may  deny  that  the  plea  is  a  suHicie^nt 
defense  to  the  case  made  in  the  bill;  that  is,  the  plaintiff  by 
this  proceeding  says,  admitting  all  the  facts  averred  in  the 
plea   or  the  plea  and  answer  in  support  of  it,  to  be  true,  the 
plea' is  not  a  sufficient  defense  to  the  case  made,  and  the  de- 
fendant is  not  entitled  to  the  relief  prayed  for.     (2)  Or  if  the 
plaintiff  desires  to  contest  the  facts  upon  which  the  defendant 

t>ose  'not  waiving  the  plea.'    If  the  follows:    "  No  demurrer  or  plea  shall 

S^^a  is  to  part  of  the  bill  only,  and  be  allowed  to  be  tiled  to  any  bill  un- 

£e  is  an  answer  to   the   rest,  it  less  upon  a  certificate    o     counsel 

expressed  to  be  an  answer  to  so  that,  in  his  opinion  it  is  well  founded 

IS  expres.ea  to        as  is  not   before  in  point  of  law  and  supported  by  the 

rd\c    to,  Ld  is     rfced^d   by  the  affidavit  of  the  defendant  that  it  is 

ime  protestation  against  waiver  of    not  interposed  for  delay;  and    if  a 
same  proLebt  &  ^^^^^  ^^^^  .^  .^  ^^^^  ^^  ^^^^  ^j  f^^t 

1 1  Danl.  Ch.  PI.  &  Pr.  683.  National  Ba..k  v    Insurance  Co..  U 

2  United  States  Equity  Rule  31  is  as    Otto  (U.  S.),  5.),  76. 


232 


DEFENSES  BY  PLEA. 


[§  176. 


bases  his  plea,  he  must  file  a  replication —  not  a  special  rep- 
lication, or  reply,  but  a  general  replication.  By  this  he  admits 
that  the  plea  itself  is  sufficient  if  the  facts  which  the  defendant 
alleges  are  true,  but  he  denies  the  allegations  of  fact;  the  repli- 
cation tenders  an  issue  of  fact  that  must  be  determined,  but 
admits  that  the  plea  is  good  in  form  and  substance,'  so  that  if 
the  defendant  proves  the  allegations  of  fact  set  up  in  his  plea 
to  be  true,  the  plaintiff's  bill  must  be  dismissed. 


1 1  Danl.  Ch.  PI.  &  Pr.  694.     "  Upon 
the  argument  of  a  plea  every  fact 
stated  in  the  bill,  and  not  denied  by 
the  averments  in  the  plea  and  by  the 
answer  in  support  of  the  pleai,  must 
be  taken  as  true.     If  a  plea  be  set 
down  for  argument  by  the  plaintiff, 
without  replying  to  it,  the  matter 
contained  in  it  must  be  considered 
as  true.     A  plea  upon  argument  may 
be  either  allowed   simply,  or   with 
leave  to  amend,  or  the  benefit  of  it 
may  be  saved  to  the  hearing,  or  it 
may    be    ordered    to  stand   for  an 
answer,  or  it  may  be  overruled.    The 
consequence  of  each  of  such  judg- 
ments will  be  considered  in  the  en- 
suing sections.     If  the  plaintiff  con- 
ceives the  plea  to  be  good,  though 
not  true,  he  should  reply  thereto,  and 
take  issue  upon  it,  as  in  the  case  of 
an  answer.     He  should  not,  however, 
reply  to  a  plea  of  the  dependency  of 
a  former  suit  for  the  same  matter. 
If  the  plaintiff  reply  to  the  plea,  he 
thereby  makes  as  full  an  admission 
of  its  validity  as  i  f  it  had  been  allowed 
upon  argument:  so  that,  if  the  de- 
fendant, at  the  hearing,  proves  his 
plea  to  be  true,  the  bill  must  be  dis- 
missed.   Therefore,  where  a  defend- 
ant, in  a  plea  of  purchase  for  a  valu- 
able consideration,  omitted  to  deny 
notice,  and  the  plaintiff  replied  to  it, 
and  the  defendant,  at  the  hearing, 
proved  the    purchase    for   valuable 
consideration,  it  was  held  that  the 
bill  ought  to  be  dismissed;  for  it  was 
the  plaintiff's  own  fault  that  he  had 


not  set  the  plea  down  for  argument, 
when  it  would  have  been  overruled. 
And  it  seems  that  in  such  case  it 
will  make  no  difference  if  the  plaint- 
iff should  prove  notice;  for  all  that 
is  required  of  a  defendant,  in  such  a 
case,  is  to  prove  his  plea,  which  he 
does  by  proving  the  purchase  and 
the  payment  of  the  consideration." 

If  plaintiff  makes  no  reply,  he  ad- 
mits truth  of  plea,  Kellner  v.  Mut- 
ual, etc.  Co..  43  Fed.  023;  Burrell  v. 
Hackley,  35  Fed.  833. 

In  Davidson  v.  Johnson,  1  C.  K 
Green  (N.  J.),  112,  113,  the  court 
said:  "The  question  is  not  strictly 
whether  the  plea  is  in  proper  form, 
but  whether  in  the  language  of  the 
statute  the  plea  be  good;  that  is, 
whether  upon  the  face  of  the  plea  it 
presents,  if  true,  a  valid  defense  to 
the  action.  The  inquiry,  when  the 
cause  is  heard  upon  the  plea,  is  sub- 
stantially as  if  the  plaintiff  bad  de- 
murred to  the  plea.  The  question  is 
not  whether  the  plea  is  true,  but 
whether,  if  true,  it  is  a  good  defense. 
This  is  the  obvious  meaning  of  the 
statute.  If  the  complainant  deems 
the  plea  bad,  the  case  goes  to  hear- 
ing upon  the  plea.  If  he  conceives 
the  plea  to  be  good,  though  not  true, 
he  takes  issue  upon  it,  and  proceeds 
as  in  case  of  an  answer.  The  sub- 
ject of  inquiry  is  not  the  mere  tech- 
nical form  of  the  plea,  but  the  suffi- 
ciency of  its  averments  to  sustain 
the  defense;  whether  it  is  good  both 
in  form  and  in  substance;  whether, 


:§  ITG.] 


DEFENSES  BY  PLEA. 


23; 


In  Farhu  v.  Kittson'  Mr.  Justice  Gray  for  the  court  said: 
"The  plaintifiF  may  either  set  down  the  plea  for  argument  or 
file  a  replication  to  it.  If  he  sets  down  the  plea  for  argument, 
be  thereby  admits  the  truth  of  all  the  facts  stated  in  the  plea, 


viz.,  assuming  all  the  facts  properly 
set  out  in  the  plea  to  be  true,  it  pre- 
sents a  valid  defense." 

1 120  U.   S.   303,   314:    Hughes   v. 
Blake,  6    Wheat.   453,   472;    Rhode 
Island  V.  Massachusetts,  14  Pet.  210, 
257.     "  But  the  case  of  Rhode  Island 
V.   Massachusetts    arose    within    its 
original  jurisdiction    in   equity,  for 
outlines  of  the  practice  in  which  the 
court  has  always  looked  to  the  prac- 
tice   of   the    court  of   chancery   in 
England.     Rule  7  of  1791,  1  Cranch, 
17,  and  1  How.  24:  Rule  3  of  1858  and 
1884,  21  How.,  V,  and  108  U.  S.  574. 
And  the  case  of  Hughes  v.  Blake, 
which   began  in  the    circuit  court, 
was  decided  here  in  1821,  before  this 
court,  under  the  authority  conferred 
upon  it  by  congress  had  established 
the  rules  of  practice  in  equity  in  the 
courts  of  the  United  States,  one  of 
which  provides  that '  if  upon  an  issue 
the  facts  stated  in  the  plea  be  deter- 
mined for  the  defendant,  they  shall 
avail  him  as  far  as  in  law  and  equity 
they  ought  to  avail  him.'    Rule  19 
in   Equity  of   1822,   7   Wheat,  xix; 
Rule  32  in  Equity  of  1842,  1  How.,  li. 
The  etfect  of  this  rule  of  court  when 
the  issue  of  fact  joined  on  a  plea  is 
determined  in  the  defendant's  favor 
need  not,  however,  be  considered  in 
this  case,  because  it  is  quite  clear 
that  at  a  hearing  upon  plea,  replica- 
tion  and  proofs,  no  fact  is  in  issue 
between  the  parties  but  the  truth  of 
the    matter  pleaded.     In   a   case  so 
heard,  decided  by  this  court  in  1803, 
Chief  Justice  Marshall  said:    *In  this 
case  the  merits  of  the  claim  cannot 
be    examined.     The    only  questions 
before  this  court  are  upon  the  suffi- 
ciency of  the  plea  to  bar  the  action, 
and  the  sufficiency  of  the  testimony 


to   support   the    plea    as   pleaded.' 
Stead  V.  Course,  4  Cranch,  403,  413. 
In  a  case  before  the  House  of  Lords 
a  year  afterwards.  Lord  Redesdale 
'observed  that  a  plea  was  a  special 
answer  to  a  bill,  differing  in  this  from 
an  answer  in  the  common  form,  as 
it  demanded    the  judgment  of  the 
court,  in  the  first  instance,  whether 
the  special  matter  urged  by  it  did 
not  debar  the  plaintiff  from  his  title 
to  that  answtT   which  the   bill  re- 
quired.   If  a  plea  were  allowed,  noth- 
ing remained  in  issue  between  the 
parties,  so  far  as  tiie  plea  extended, 
but  the  truth  of  the  matter  pleaded.' 
•Upon  a  plea  allowed,  nothing  is  in 
issue  between   the  parties  but  the 
matter  pleaded,  and  the  averments 
added  to  support  the  plea.'     'Upon 
argument  of  a  plea,  every  fact  stated 
in  the  bill,  and  not  denied  by  answer 
in  support  of  the  plea,  must  be  taken 
for  tru&'    Roche  v.  Morgell,  2  Sch. 
&  Lef.  721,  725-727. 

"The  distinction    between   a  de- 
murrer and  a  plea  dates  as  far  back 
as  the  time  of  Lord  Bacon,  by  the 
5Sth  of  whose  Ordinances  for  the  Ad- 
ministration of  Justice  in  Chancery, 
'a  demurrer  is  properly  upon  matter 
defective  contained  in  the  bill  itself, 
and  no  foreign  matter;  but  a  plea  is 
of   foreign    matter  to   discliarge  or 
stay  the  suit,  as  that  the  cause  hath 
been  formerly  dismissed,  or  that  the 
plaintiff  is  outlawed  or  excommuni- 
cated, or  there   is  another   bill   de- 
pending for  the  same  cause,  or  the 
like.'     Orders  in  Chancery  (Beanies' 
ed.),  26.   Lord  Redesdale,  in  his  Treat- 
ise on  Pleadings,  says:    'A  plea  must 
aver  facts  to  which  the  plaintiff  may 
reply,  and  not,  in  the  nature  of  a  de- 
nmrrer,   rest  on   facts  in  the  bill.' 


234:  DEFENSES  BY  PLEA.  [§  17T_ 

and  merely  denies  their  sufficiency  in  point  of  law  to  prevent 
his  recovery.  If,  on  the  other  hand,  he  replies  to  the  plea, 
joining  issue  upon  the  facts  averred  in  it,  and  so  puts  the  de- 
fendant to  the  trouble  and  expense  of  proving  his  plea,  he 
thereby,  according  to  the  English  chancery  practice,  admits 
that  if  the  particular  facts  stated  in  the  plea  are  true,  they  are 
sufficient  in  law  to  bar  his  recovery;  and  if  they  are  proved  to 
be  true,  the  bill  must  be  dismissed,  without  reference  to  the 
equity  arising  from  any  other  facts  stated  in  the  bill.  That 
practice  in  this  particular  has  been  twice  recognized  by  this 
court." 

§177.  Plaintiff  may  amend  his  bill  after  plea. — After  the 
plea  has  been  filed  and  served  the  plaintiff  may,  as  of  course, 
amend  his  bill  of  complaint.  If  he  seeks  to  amend  before  rep- 
lication he  may  do  so  on  motion  without  notice  to  the  opposite 
party,  but  if  he  has  replied  he  can  only  amend  upon  an  order 
obtained  on  special  motion  of  which  the  opposite  party  has 
had  notice.  In  the  federal  courts,  however,  this  is  regulated 
by  rule,  and  it  is  provided  that  the  plaintiff  is  at  liberty  to 
amend,  as  matter  of  course,  without  payment  of  costs  before 
any  copy  has  been  taken  out  of  the  clerk's  office,  "  and  in  many 
small  matters  afterwards,  such  as  filling  blanks,  correcting 
errors  of  dates,  misnomer  of  parties,  misdescription  of  premises, 
clerical  errors,  and  generally  in  matters  of  form.  But  if  he 
amends  in  a  material  point  (as  he  may  do  of  course)  after  a 
copy  has  been  so  taken,  before  any  answer  or  plea  or  demurrer 
to  the  bill,  he  shall  pay  to  the  defendant  the  costs  occasioned 

Mitf.  PI.  297.  And  Mr.  Jeremy,  in  a  bill,  must  betaken  by  demurrer  and 
note  to  this  passage,  commenting  on  not  by  plea  is  so  well  established 
the  ordinance  of  Lord  Bacon,  ob-  that  it  has  been  constantly  assumed 
serves,  'The  prominent  distinction  and  therefore  seldom  stated  in  ju- 
between  a  plea  and  a  demurrer,  here  dicial  opinions;  yet  there  are  in- 
noticed,  is  strictly  true,  even  of  that  stances  in  which  it  has  been  explic- 
description  of  plea  which  is  termed  itly  recognized  by  other  courts  of 
negative,  for  it  is  the  aflSrmative  of  chancery  as  well  as  by  this  court, 
the  proposition  which  is  stated  in  Billing  v.  Flight,  1  Madd.  230;  Stefif 
the  bill;'  in  other  words,  a  plea,  v.  Andrews,  2  Madd.  6;  Varick  v. 
which  avers  that  a  certain  fact  is  Dodge,  9  Paige,  149;  Phelps  v.  Gar- 
not  as  the  bill  affirms  it  to  be,  sets  up  row,  'S  Edw.  Ch.  139;  Rhode  Island  v. 
matter  not  contained  in  the  bill.  Massachusetts,  14  Pet.  210;  National 
That  an  objection  to  the  equity  of  Bank  v.  Insurance  Co.,  104  U.  S.  54, 
the  plaintiff's  claim,  as  stated  in  the  76." 


§  1T8.J  DEFENSES  BY  PLEA.  235 

thereby,  and  shall,  without  delay,  furnish  him  a  fair  copy 
thereof  free  of  expense,  with  suitable  references  to  the  places 
where  the  same  are  to  be  inserted.  And  if  the  amendments 
are  numerous,  he  shall  furnish,  in  like  manner,  to  the  defend- 
ant, a  copy  of  the  whole  bill  as  amended ;  and  if  there  be  more 
than  one  defendant,  a  copy  shall  be  furnished  to  each  defend- 
ant affected  thereby."  And  if  the  amendment  is  sought  after 
an  answer,  or  plea,  or  demurrer,  it  must  be  upon  motion  and 
petition,  with  notice  to  the  opposite  party,  and  obtaining  an 
order  from  the  judge  of  the  court,  the  costs  being  in  the  dis- 
cretion of  the  court.'  It  has  been  held,  however,  that  the 
complainant,  by  amending  his  bill  of  complaint,  admits  the 
validity  of  the  plea,  and  so  the  plea  will  be  considered  as  sus- 
tained the  same  as  though  allowed  on  argument.-  Costs  may 
be  given  the  defendant  in  the  discretion  of  the  court. 

§  178.  Withdrawing  tlie  plea. —  On  motion,  the  defendant 
may  by  order  of  the  court  be  allowed  to  withdraw  his  plea 
even  after  it  has  been  set  down  for  argument.  And  when  per- 
mitted to  do  so,  and  the  reason  for  the  withdrawal  is  that  it 
was  informally  drawn  but  is  otherwise  sufficient,  the  court  will 
generally  allow  defendant  to  file  another  plea,  or  to  answer 
the  bill;  this,  however,  is  permitted  in  the  sound  discretion  of 
the  court  and  usually  upon  terms  or  payment  of  costs.  Amend- 
ments which  make  up  a  new  case  and  work  surprise  and  great 
inconvenience  to  parties,  especially  where  the  amendment  is 
proposed  a  long  time  after  the  amended  plea  was  filed,  will 
not  generally  be  allowed.  Courts  of  equity,  however,  in  mat- 
ters of  amendment  or  withdrawing  of  pleadings,  are  always 
liberal  if  equity  and  good  conscience  demand  it. 

The  supreme  court  of  the  United  States,  in  Hardin  v.  Boyd^ 

1  U.  S.  Eq.  Rules  28,  29.  fact  or  circumstance  connected  with 

2  Peck  V.  Burgess,  Walk.  Ch.  485;  the  substance  of  the  case,  but  not 
Tompkins  v.  Hullister,  60  Mich.  470;  forming  the  substance  itself,  the 
1  Barb.  Ch.  Pr.  120;  Shields  v.  Barrow,  amendment  is  usually  granted.  But 
17  How.  (U.  S.)  130;  Walden  v.  Bod-  the  substance  of  the  bill  must  con- 
ley,  14  Pet.  156;  Goodyear  v.  Bourn,  tain  ground  for  relief.  There  mu.st  be 
3  Blatch.  (U.  S.)  260.  equity  in  the  case,  when  fully  stated 

3  113  U.  S.  761.  In  Lyon  v.  Tall-  and  correctly  applied  to  the  proper 
madge,  1  Johns.  Ch.  184,  it  was  said:  parties,  suflScient  to  warrant  a  de- 
"  If  the  bill  be  found  defective  in  its  cree."  And  in  1  Daniell's  Ch.  PI.  &  Pr. 
prayer  for  relief,  or  in  proper  parties,  384  (5th  ed.),  the  author,  after  allud- 
or  in  the  omission  or  mistake  of  some  ing  to  the  rule  in  reference  to  amencU 


236  DEFENSES  BY  Pl^A.  [§  179. 

in  discussing  the  question  of  amendments  of  equity  pleadin<^s 
said:  "In  reference  to  amendments  of  equity  pleadings  the 
courts  have  found  it  impracticable  to  lay  down  a  rule  that  would 
govern  all  cases.  Their  allowance  must  at  every  stage  of  the 
cause  rest  in  the  discretion  of  the  court,  and  that  discretion 
must  depend  largely  on  the  special  circumstances  of  each  case. 
It  may  be  said,  generally,  that  in  passing  upon  applications  to 
amend,  the  ends  of  justice  should  never  be  sacrificed  to  mere 
forms,  or  by  too  rigid  an  adherence  to  technical  rules  of  prac- 
tice. Undoubtedly,  great  caution  should  be  exercised  where 
the  application  comes  after  the  litigation  has  continued  for 
some  time,  or  when  the  granting  of  it  would  cause  serious  in- 
convenience or  expense  to  tlie  opposite  side.  And  an  amend- 
ment should  rarely,  if  ever,  bo  permitted  where  it  would 
materially  change  the  very  substance  of  the  case  made  by  the 
bill,  and  to  which  the  parties  have  directed  their  proofs." 

§  170.  The  hearing. —  The  issue,  being  made  up  by  the  bill 
of  complaint  and  the  plea  of  the  defendant,  or  by  bill  of 
complaint,  plea  of  defendant,  answer  in  support  of  the  plea  and 
the  reply  of  the  complainant,  as  the  case  may  be,  may  be 
brought  on  for  hearing  by  either  party.  In  those  courts  where 
causes  are  brought  to  hearing  by  notice  of  hearing  served  upon 
the  opposite  party,  as  prescribed  by  rule,  the  plaintiff  may  no- 
tice the  case  for  hearing  at  once  on  the  filing  of  the  plea  of  the 
defendant,  if  he  does  not  choose  to  reply,  and  will  do  so  where 
he  considers  the  plea  insufficient.  If  the  plea  is  deemed  suf- 
ficient, but  the  facts  are  disputed,  he  may  reply  by  filing,  as 
we  have  seen,  a  general  replication,  after  which  either  party 
may  notice  the  case  for  hearing.  If  the  plaintiff  fail  to  file 
and  serve  a  replication  within  the  time  allowed  by  rule,  then 
either  party  may  notice  the  case  for  hearing  on  bill  and  plea. 

In  the  United  States  courts  cases  are  set  down  for  hearing 
in  pursuance  of  the  rules  of  the  court.  "  The  plaintiff  may  set 
down  the  demurrer  or  plea  to  be  argued,  or  he  may  take  issue 
on  the  plea.     If,  upon  an  issue,  the  facts  stated  in  the  plea  be 

ments.    observes:     "The    instances,  relief,  although  different  from  that 

however,  in  which  this  will  be  done  sought  by  the  specific  prayer;  where 

are  confined  to  those  where  it  ap-  the  object  of  the  proposed  amend- 

pears,  from  the  case  made  by  the  ment  is  to  make  a  new  case,  it  will 

bill,  that  the  plaintiff  is  entitled  to  not  be  permitted." 


9S7 
o  1^0  1  DEFENSES  BY  PLEA.  ^'-' 

determined  for  the  defendant,  they  shall  avail  him  as  far  as  in 
law  and  equity  they  ought  to  avail  him.-     The  issue  to  be 
determined  at  the  hearing  is  made  up  by  the  pleadmgs  as  we 
have  seen.2     n  the  hearing  is  upon  the  bill  and  plea,  the  ques- 
tion to  be  determined  is  the  sufficiency  of  the  plea  as  a  de- 
fense to  the  case  made  by  the  bill.     The  proceedmgs  upon  the 
ar.ru.nent  of  the  case  on   bill  and   plea  are  quite  the  same  as 
upon  a  demurrer  to  the  bill.     The  facts  alleged  in  the  plea  are 
admitted  to  be  true;  the  plaintiff  claims,  by  not  reply mg,  that 
admitting  all  that  is  alleged  in  the  plea  to  be  true,  it  is  not  a  sulli- 
cient  defense  to  the  case  made  by  the  bill.   In  such  case  every 
fact  alleged  in  the  bill  and  not  denied  by  the  allegations  of 
the  plea,  or  in  the  plea  and  the  answer  in  support  of  the  plea, 
are  admitted  to  be  true;  and  so  if  there  are  sufficient  allega- 
tions in  the  bill  of  complaint  undenied  by  these  pleadmgs 
of  the  defendant  to  support  the  plaintiiFs  case,  or  a  part  of  the 
prayer  of  the  bill,  the  plea  will  be  disallowed.    If  the  plaintill 
has  filed  and  served  a  replication  to  the  plea,  then  the  issue  is 
one  of  fact  to  determine  whether  the  facts  set  up  in  the  plea 
are  true.     In  such  case,  as  has  been  said,  the  validity  of  the 
plea  can  never  be  questioned,  only  its  truth.  "In  fact,  nothing 
but  the  matters  contained  in  the  plea,  as  to  so  much  of  the  bill 
as  the  plea  covers,  is  in  issue  between  the  parties.'"' 

§  180.  The  determination  or  decree  of  the  court  upon  the 
hearing.- Upon  the  hearing  of  the  issue  thus  made  up  the 
court  may  find  (1)  that  the  plea  should  be  allowed;  (2)  that 
the  benefit  of  the  plea  should  be  saved  for  the  hearing;  (3)  that 
the  plea  should  stand  for  an  answer ;  or  (4)  that  the  plea  be  over- 
ruled While  the  equity  court  at  all  times  recognizes  the 
maxim  "equity  follows  the  law,"  and  that  the  determination 

1  U  S  Eq.  Rule  o8;  Myers  v.  Dorr,  very  evident  that  upon  a  replication 

13  Bl'atch  (U.  S.)  22;  RhoJelsland  v.  to  this  plea  the  truth  of  these  recitals 

Massachusetts,  14  Pet.  (U.  S.)  210.  would  not  be  put  in  issue;  but  only 

T^nte  ^\Td  the  fact  that  the  release  contained 

3iDanrCh."pi.  &Pr.  697.    laFish  such  recitals.     And   under  such  an 

V  Miller  5  Paige,  26,  the  chancellor  issue,  the  complainant  would  not  be 

said:   •'  Upon  a  replication  to  a  plea,  permitted  to  introduce  evidence  to 

nothing   is  in  issue  except  what  is  show   that  ^^e  recitals  were  false^ 

distinctly  averred  in  the  plea;  and  if  Allen  v.  Randolph  4  John.  Ch    603 

that  is  established  at  the  hearing,  the  Parker  v.  Alcocl.  1  Younge  &  Jervis. 

pl.a  IS  an  absolute  bar  to  so  much  of  432;  Mitf.  PL  (Edw.  ed.)  2b3.  o23. 
the  bill  as  it  professes  to  cover.     It  is 


238 


DEFENSES  BY  PLEA. 


[§  130. 


of  equity  cases  is  not  dependent  upon  the  individual  conscience 
of  the  chancellor  who  hears  them,  it  will  nevertheless  be  con- 
stantly borne  in  mind  that  it  is  a  court  of  equity;  that  it  is  not 
governed  by  iron-clad  rules  of  law  and  procedure,  but  is  founded 
in  equity  and  good  conscience.  And  so  the  court,  (1)  if  it  finds 
the  plea  to  be  sufficient  or  true,  if  its  truth  is  put  in  issue,  and 
is  a  complete  bar  to  the  case  set  up  in  the  bill,  will  allow  the  plea 
and  make  its  decree  distnissing  the  bill  of  complaint;  but 
(2)  if  at  the  hearing'  there  are  matters  disclosed  in  evidence 
that  even  if  the  facts  of  the  plea  are  strictly  true  would  avoid 
it,  the  court  will  not  allow  the  plea,  although  it  appears  to  be 
a  good  defense;  but,  that  the  benefit  of  the  situation  may  not 
be  lost,  will  direct  that  the  benefit  of  it  shall  be  saved  to  the 
defendant  at  the  hearing.^ 

(3)  "  If  a  plea  contains  nothing  which  can  be  a  valid  defense 
to  any  part  of  the  matters  which  it  professes  to  cover,  it  will 
not  be  allowed  to  stand  for  an  answer,  but  should  be  abso- 
lutely overruled.     "When  a  plea  is  allowed  to  stand  for  an  an- 


11  Barb.  Ch.  PI.  &  Pr.  121,  122; 
Story,  Eq.  PL,  sees.  698,  700.  "If, 
upon  argument,  the  benefit  of  a  plea 
is  saved  to  the  hearing,  it  is  consid- 
ered that,  so  far  as  appears  to  the 
court,  it  may  be  a  defense,  but  that 
there  may  be  matter  disclosed  in 
evidence  which  would  avoid  it,  sup- 
posing the  matter  pleaded  to  be 
strictly  true;  and  the  court,  there- 
fore, will  not  preclude  the  question. 
When  a  plea  is  ordered  to  stand  for 
an  answer  it  is  merely  determined 
that  it  contains  matter  which  may 
be  a  defense  or  part  of  a  defense, 
but  that  it  is  not  a  full  defense;  or 
that  it  has  been  informally  offered 
by  way  of  plea;  o:-  that  it  has  not 
been  properly  supported  by  an  an- 
swer, so  that  the  truth  of  it  is  doubt- 
ful. For,  if  a  plea  requires  an  an- 
swer to  support  it,  upon  argument 
of  the  plea  the  answer  may  be  read 
to  counterprove  the  plea;  and  if  the 
defendant  appears  not  to  have  suffi- 
ciently supported  his  plea  by  his  an- 
swer, the  plea  must  be  overruled  or 


ordered  to  stand  for  an  answer  only. 
A  plea  is  usually  ordered  to  stand 
for  an  answer  where  it  states  mat- 
ter which  may  be  a  defense  to  the 
bill,  although  perhaps  not  proper  for 
a  plea,  or  informally  pleaded.  But 
if  a  plea  states  nothing  which  can 
be  a  defense  it  is  merely  overruled. 
If  a  plea  is  ordered  to  stand  for  an 
answer  it  is  allowed  to  be  a  suffi- 
cient answer  to  so  much  of  the  bill 
as  it  covers,  unless,  by  the  order,  lib- 
erty is  given  to  except  But  that 
liberty  may  be  qualified,  so  as  to  pro- 
tect the  defendant  from  any  partic- 
ular discovery  which  he  ought  not 
to  be  compelled  to  make.  And,  if  a 
plea  is  accompanied  by  an  answer, 
and  is  ordered  to  stand  for  an  an- 
swer, without  liberty  to  except,  the 
plaintiff  mny  yet  except  to  the  an- 
swer as  insufficient  to  the  parts  of 
the  bill  not  covered  by  the  plea  If 
a  plea,  accompanied  by  an  answer, 
is  allowed,  the  answer  may  be  read 
at  the  hearing  of  the  cause  to  coun- 
terprove the  plea." 


§  180.] 


DEFENSES  BY  PLEA. 


239 


swer  it  is  determined  that  it  contains  matter  which,  if  put  in 
the  form  of  an  answer,  would  have  constituted  a  valid  defense 
to  some  material  part  of  the  matters  to  which  it  is  pleaded  as 
a  bar,  but  that  it  is  not  a  full  defense  to  the  whole  matter 
which  it  professes  to  cover,  or  that  it  is  informally  pleaded,  or 
is  improperly  offered  as  a  defense  by  way  of  plea;  or  that  it  is 
not  properly  supported  by  answer."  ' 


1  This  is  the  language  of  the  chan- 
cellor in  Orcutt  v.  Orms,  S  Paige  Ch. 
(N.  Y.)  459,  461.     And  tiie  court  in 
the  opinion  further  says:  '*  If  a  sim- 
ple plea  to  the  whole  bill,  unaccom- 
panied by  an  answer,  is  allowed  to 
stand  for  an  answer,  without  reserv- 
ing to  the  conipluiiiaut  the  right  to 
except,  it  is  to  be  deemed  a  sufficient 
answer,  though  not  necessarily  a  full 
and  perfect  defense  to  the  whole  bill. 
But  if  the  plea  is  ordered  to  stand 
for  an  answer,   with   liberty  to  ex- 
cept, or  is  accompanied  by  an  an- 
swer,  which   will  enable   the  com- 
plainant   to    except    without    such 
special  leave,  the  master  upon  a  refer- 
ence of  the  exceptions  must  inquire 
and  ascertain  whether  the  bill  is  fully 
answered,  taking  the  plea  as  a  part 
of  that  answer;  unless  the  court,  in 
permitting  the  plea  to  stand  for  an 
answer,  as  in  the  case  of  Kirby  v. 
Taylor  (6  Johns.  Cli.  254),  declares  as 
to  what  part  of  the   bill  it  is  to  be 
considered  a  good  defense.  The  court, 
however,   sometimes    proliibits    the 
complainant  from  calling  upon  the 
defendant,  by  exceptions,  to  discover 
particular  matters  as  to  which  he  is 
not  legally  bound  to  answer.     Thus 
in  Brereton  v.  Gamul  (2   Atk.  240), 
and  in  Bagley  v.  Adams  (6  Ves.  Jun. 
586),  the  pleas  were  ordered  to  stand 
for  answers,  with  liberty  to  the  com- 
plainants to  except,  save  as  to  call- 
ing   upon   the    defendants   for    ac- 
counts." 

In  Leacraft  v.  Demprey,  4  Paige, 
124,  the  chancellor  said:  "The  plea 
in  this  case  is  a  sufficient  defense  to 


so  much  of  the  bill  as  seeks  an  ac- 
count and  satisfaction  of  the  rents 
and  profits  of  the  premises  in  the  bill 
mentioned,  up  to  and  including  the 
first  of  February.  1831.  But  it  is  de- 
fective in  a  point  of  form,  it  being 
overruled  by  the  answer.  It  is  not 
necessary  to  decide  the  question 
whether  any  of  the  facts  stated 
in  the  answer  do  in  fact  cover 
the  part  of  the  bill  intended  to  be 
covered  by  the  plea.  1  am  mcliued 
to  think,  however,  they  do  not  But 
by  referring  to  the  commencement 
of  the  answer,  it  will  be  seen  that  it 
purports  to  be  an  answer  to  the 
whole  bill,  without  excepting  these 
parts  to  which  the  defendant  has 
pleaded  in  bar,  both  as  to  the  dis- 
covery and  relief.  The  defendant 
may  plead,  answer  and  demur  totlie 
same  bill;  but  each  of  these  defenses 
must  refer  to.  and  profess,  in  terms, 
to  be  put  in  as  a  defense  to  separate 
and  distinct  parts  of  the  bill.  Thus,  if 
an  answer  commences  as  an  answer 
tothewhole  bill,  it  will  overrule  a  plea 
or  demurrer  to  any  particular  part 
of  the  bill,  although  the  defendant 
does  not  in  fact  answer  that  part  ot 
the  bill  which  is  covered  by  the  plea 
or  demurrer.  Lord  Redesdale  says, 
if  the  plea  is  to  part  of  the  bill  only, 
and  there  is  an  answer  to  the  rest, 
it  is  expressed  to  be  an  answer  to  so 
much  of  the  bill  as  is  not  before 
pleaded  to,  and  is  preceded  by  a  pro- 
testation against  the  waiver  of  the 
plea.  (Mitf,  PI.,  4th  Lond.  ed.,  300.) 
In  practice,  the  plea  or  demurrer 
usually  precedes  the  answer,  which 


240 


DEFENSES  BY  ANSWER. 


[§  181- 


(4)  If  ui)on  the  hearing  it  should  appear  that  the  plea  is 
insulficient,  or  being  suiBcient  is  not  true  in  fact  and  there  is  no 
reason  why  it  should  be  held  for  the  hearing,  or  stand  as  an 
answer,  it  will  be  dismissed  and  the  plaintifif  may  have  a  de- 
cree as  in  a  case  pro  confesso.  In  such  a  case,  however,  the 
defendant  will  be  allowed,  on  application  to  the  court,  to  plead 
again  or  to  answer  the  bill,  but  his  answer  must  be  consistent 
with  his  former  pleadings.' 

III.  The  Answer. 

§  181.  The  answer  of  the  defendant  in  general. —  If  the 

bill  of  complaint  is  not  demurrable  and  cannot  be  met  by  a 


in  that  case  commences  thus:  'And 
as  to  tlie  residue  of  the  said  bill,  this 
defendant,  not  waiving  his  said  plea, 
but  relying  thereon  and  saving  and 
reserving  to  himself,  etc.,  for  answer 
thereto,  or  to  so  mucli  thereof  as  he 
is  advised  is  material,"  etc.  (Lube's 
Eq.  PI.  ;i90.)  I  see  no  objection  ex- 
cept as  to  the  convenience  of  refer- 
ence, in  permitting  the  answer  to 
precede  the  plea,  as  has  been  done 
in  the  present  case.  But  then  the 
pleader  must,  by  a  reference  to  the 
part  of  the  bill  which  is  subse- 
quently covered  by  the  plea,  or 
otherwise,  show  that  it  is  an  answer 
to  the  residue  of  the  bill  only.  As 
the  answer  in  this  case  commences 
and  concludes  as  an  answer  to  the 
whole  bill,  in  the  same  manner  as  if 
it  was  not  intended  to  be  followed 
by  a  plea  as  to  part,  in  point  of  form 
the  plea  is  overruled  by  the  answer, 
and  cannot  therefore  be  allowed. 

"As  this  plea,  however,  is  a  full 
defense  to  so  much  of  the  bill  as  it 
professes  to  cover,  and  is  merely  in- 
formal in  consequence  of  the  inad- 
vertence of  the  solicitor  in  not  ex- 
cepting that  part  of  the  bill  in  the 
commencement  of  his  answer,  it 
would  be  a  matter  almost  of  course 
to  permit  him  to  amend,  on  payment 
of  costs." 

1 1  Danl.  Ch.  PI.  &  Pr.  701.     "The 


effect  of  overruling  a  plea  is  to  im- 
pose upon  tlie  defendant  the  neces- 
sity of  making  a  new  defense.  This 
he  may  do,  either  by  a  new  plea  or 
by  an  answer;  and  the  proceedings 
upon  the  new  defense  will  be  the 
same  as  if  it  had  been  originally 
made."  By  joining  issue  on  a  plea 
the  complainant  admits  the  suffi- 
ciency of  the  facts  stated  as  a  de- 
fense, and  if  their  truth  is  estab- 
lished by  evidence  at  the  hearing, 
the  complainant's  bill  must  be  dis- 
missed. Hunt  V.  New  Jersey  Trao- 
tion  Co ,  62  N.  J.  Ch.  225,  49  AtL  434; 
Earll  V.  Metropolitan,  etc.,  87  Fed. 
5'^8.  If  the  plea  does  not  meet  the 
whole  case  it  is  barred.  Miller  v. 
United  States  Casualty  Co.,  61  N.  J. 
Ch.  110,  47  Atl.  509;  Dacosta  v.  Dib- 
ble, 40  Fla.  418,  24  So.  911.  And  under 
United  States  Equity  Rule  33  it 
was  held  in  Chisholm  v.  Johnson,  84 
Fed.  384,  that,  at  the  hearing,  the 
court,  without  passing  upon  the 
merits  of  the  plea,  may  overrule  it 
and  direct  the  defendant  to  file  an 
answer  without  prejudice  to  his 
right,  subject  to  all  just  exceptions 
on  the  part  of  the  complainant,  and 
to  set  forth  in  the  answer  the  mat- 
ters set  up  in  the  plea,  where  such  a 
course  appears  to  the  court  best  cal- 
culated to  secure  full  justice  between 
the  parties. 


§  182.]  DEFENSES  BY  ANSWER.  241 

plea,  or  if  either  of  these  defenses  has  been  adopted  and  the 
demurrer  or  plea  has  been  overruled  and  the  defendant  does 
not  desire  to  disclaim  any  interest  in  the  suit,  having  a  defense 
to  the  case  made  upon  the  merits,  he  should  answer  the  bill. 
The  answer  is  the  most  usual  defense  in  equity;  by  it  the  de- 
fendant is  at  liberty  to  set  up  as  many  defenses  as  ho  pleases 
if  they  are  consistent  with  each  other;  to  traverse  or  confess 
and  avoid,  or  otherwise  answer  each  and  every  allegation  of 
the  bill  of  complaint,  setting  out  concisely  and  fully  his  de- 
fense to  each  and  every  claim  of  the  complainant.  This  is  the 
most  common  defense  in  equity,  and  it  is  the  only  one  by 
which  the  case  can  be  defended  upon  its  merits  by  meeting  all 
the  allegations  of  the  bill  of  complaint.  It  is  said  that  "  the- 
answer  is  the  ordinary  mode  of  defense  in  an  equitable  pro- 
ceeding, and  may  be  put  into  the  whole  bill  or  to  such  parts- 
thereof  as  are  not  covered  by  plea  or  demurrer.  Since  it  may 
embrace  more  circumstances  than  a  plea,  it  may  be  used  with 
greater  propriety  where  defendant  is  not  anxious  to  prevent  a 
discovery,  though  the  plea  might  be  a  complete  bar.  But 
where  by  introducing  additional  circumstances  he  has  an  op- 
portunity of  exhibiting  his  case  in  a  more  favorable  light,  the 
answer  is  the  best  mode  of  defense."  ^ 

§  182.  The  answer  is  twofold  in  its  nature  and  effect. — 
In  all  cases  where  the  bill  seeks  for  general  relief  the  answer 
of  necessity  consists  of  two  parts;  first,  the  defense  to  the  case 
made  by  the  bill;  and  second,  the  answer  of  the  defendant  to 
the  interrogatories  of  the  complainant  by  way  of  discovery. 
A  bill  may  not  be  strictly  a  bill  for  discovery;  every  bill  in 
equity  which  prays  for  relief  requires  of  the  defendant  that  he 
shall  make  a  full,  true,  direct  and  perfect  answer  to  the  several 
allegations  in  the  bill  of  complaint,  and  to  make  such  an  an- 
swer necessarily  requires  the  statement  of  the  facts  in  the 
possession  of  the  defendant  which  will  be  a  defense  and  an 
answer  to  the  allegations  of  the  bill.  And  so  the  complainant 
has  the  right  to  require  of  the  defendant  that  he  make  an  an- 
swer to  the  several  allegations  of  the  bill,  for  the  facts  stated 
in  the  answer  may  be  used  by  the  complainant  as  evidence 
upon  the  hearing  of  the  cause,  and  there  may  be  cases  where 

1 1  Barb.  Ch.  Pr.  130,  131. 
16 


342 


DEFENSES  BY  ANSWER. 


[§  1S3. 


the  evidence  that  the  complainant  could  produce  outside  of 
the  allegations  in  his  bill  of  complaint  would  largely  depend 
upon  the  answer  of  the  defendant.^ 

§  183.  Requisites  of  the  answer.— (1)  The  answer  must  he  full 
and  complete.  If  the  defendant  elects  to  make  his  defense  by 
answer  he  will  be  required  to  answer  fully  each  and  every 
material  allegation  in  the  bill  of  complaint.  If  facts  material 
to  the  case  are  explicitly  alleged  in  the  stating  part  of  the  bill 
"it  becomes  necessary  for  the  defendant  to  deny  all  knowl- 


1 1  DanL  Ch.  PI.  &  Pr.  711.     "This 
twofold   character  of  an  answer  is 
peculiar  to  pleadings  in  equity,  and 
is  not  found  even  in  those  that  are 
formed  on  the  same  model  in  the 
civil  and  ecclesiastical   courts;   the 
answer  which  the  defendant  is  re- 
quired to  make,  upon  oath,  to  the 
allegations  and   articles    being,    in 
those   courts,  a  wholly  distinct  in- 
strument from  the  responsive  alle- 
gation which  contains  the  defense. 
Although   an  answer    has.    in  gen- 
eral,   the    twofold    property    above 
stated,  it  is  seldom  possible,  in  fram- 
ing one,  to  keep  the  parts  sei^arate 
from  each  other:  tliough,  when  it  is 
practicable  to  do  so,  such  a  course  is 
generally  desirable.     It  is,  however, 
of  great  importance  to  the  pleader, 
in  preparing  an  answer,  to  hear  in 
mind  that,   besides    answering    the 
plaintiff's  case  as  made  by  the  bill, 
he  should  state  to  the  court,  upon  the 
answer,    all   the    circumstances    of 
which  the  defendant  intends  to  avail 
himself  by  way  of  defense:  for  a  de- 
fendant ought  to  apprise  the  plaintiff, 
by  his  answer,  of  the  nature  of  the 
case  he  intends  to  set  up.  and  that, 
too,  in  a  clear,  unambiguous  manner; 
and,  in  strictness,  he  cannot  avail 
himself  of  any   matter   in    defense 
which  is  not  stated  in   his  answer, 
even  though  it  should  appear  in  his 
evidence." 

The  chancellor,  in  Smith  v.  St. 
Louis  Mutual  Life  Ins.  Co.,  2  Tenn. 
Ch.  599,  601,  in  discussing  this  feature 


of  the  answer  in  chancery,  and  by 
way  of    accounting  for  its  origin, 
said:    "It  combines,  therefore,  two 
proceedings  which,  in  the  civil  law 
and  in  the  ecclesiastical  courts,  were 
completely  separated.     In  the  civil 
law  the  pleadings  were  made  up  be- 
fore   the    prsetor.    who    afterwards 
gave  the  parties  judges,  and  it  was 
before  these  judges  that  the  actor 
(plaintiff)  propounded  his  positions 
in  the  Ubellus  articulatus.  to  which 
the  defendant  was  required  to  put 
in  an  answer  in  the  nature  of  a  dis- 
covery.    Gilb.  For.  Rom.  90.     In  the 
ecclesiastical  courts,  also,  the  answer 
to  the  interrogatories  for  discovery 
was  a   wholly   distinct   instrument 
from  the  responsive  allegation  to  the 
libel  embodying  the  defensa     Hare 
on  Disc.  223.     In  a  bill  in  equity  both 
of  these  distinct  parts  are  united  in 
one  instrument.     And  this  ambigu- 
ity in  the  use  of  the  word  'answer,' 
a  word  importing  a  double  sense  and 
office,   has   sometimes,   says    Judge 
Story,  led  to  erroneous  decisions,  and 
to  no  small  confusion  of  language. 
Story's  Eq.  PI.  sec.  850.    Mr.  Wigram, 
in  his  discriminating  thesis  on  Points 
of  Discovery,  page  10,  note,  regrets 
that  the  division  of  the   civil  and 
ecclesiastical  law  has  not  been  re- 
tained in  equity  proceedings.     'The 
difficulty,'  he  says,  'of  finding  out 
the   issue,  in   the  present   mode  of 
pleading,  is  alone  a  sufficient  reason 
for  desiring  it' " 


§  183.] 


DEFENSES  BY  ANSWER. 


243 


edge  and  inforQiation  upon  the  point  in  order  to  excuse  him- 
self from  either  admitting  or  denying  the  truth  of  the  allega- 
tion. If  the  defendant  has  any  information  upon  a  material 
matter  alleged  in  the  bill,  aside  from  the  bill  itself,  he  is  bound 
to  state  his  belief  of  the  truth  or  falsity  of  the  allegation."  ^ 
It  may  therefore  be  said  to  be  the  duty  of  the  defendant  in 
answering  a  bill  of  complaint  either  to  admit  or  deny  every 
material  allegation  which  comes  within  his  personal  knowl- 
edge, and  if  it  is  not  within  his  personal  knowledge  —  if  he  has 
information  concerning  the  allegation,  he  should  admit  or  deny 
upon  information,  and  state  his  belief  as  to  such  matters.  If 
he  has  no  knowledge,  information,  or  belief,  he  may  answer 
by  so  stating. 

(2)  The  answer  must  he  positive  and  direct.  It  has  been  said 
that  whatever  plaintiff  is  bound  to  allege  in  the  bill  the  de- 
fendant is  bound  to  answer.'^     A  very  important  reason  for 

1  Devereaux  v.  Cooper,  11  Vt.  103. 
In  Davis  v.  Mapes,  2  Paijje  (N.  Y.), 
105,  it  was  held  that  the  complain- 
ant is  entitled  to  an  answer  to  every 
material  allegation  charged  in  his 
bill,  even  thou<5h  he  may  prove  it  by 
other  testimony  if  it  is  within  the 
knowledge  of  the  defendant,  or  if  it 
is  contained  in  any  books  or  papers 
in  his  possession  or  under  his  control 
he  must  answer.  M.  K  Church  v. 
Jaques,  1  John&  Ch.  65,  held,  "The 
defendant  is  bound  to  deny  or  admit 
all  the  facts  stated  in  the  bill,  with 
all  their  material  circumstances, 
without  special  interrogatories  for 
that  purpose." 

-Van  Courtlandt  v.  Beekman,  6 
Paige  (N.  Y.),  492.  In  Warren  v. 
Warren,  30  Vt  530,  it  was  held  that 
"  A  defendant  in  chancery,  when  he 
makes  his  defense  by  way  of  answer, 
must  set  up  all  the  various  grounds 
of  defense  upon  which  he  intends  to 
vely."  (2  Syllabus.)  Gilkie  v.  Paige, 
Walk.  Ch.  (Mich.)  520.  This  is  regu- 
lated in  the  United  States  court  by 
Equity  Rule  No.  39,  which  is  as  fol- 
lows: "The  rule,  tliat  if  a  defendant 
submits  to  answer  he  shall  answer 


fully  to  all  the  matters  of  the  bill, 
shall  no  longer  apply  in  cases  where 
he  might  by  plea  protect  himself 
from  such  answer  and  discovery. 
And  the  defendant  shall  be  entitled 
in  all  cases  by  answer  to  insist  upon 
all  matters  of  defense  (not  being 
matters  of  abatement,  or  to  the 
character  of  the  parties,  or  matters 
of  form)  in  bar  of  or  to  the  merits  of 
the  bill,  of  whicii  he  may  be  entitled 
to  avail  himself  by  a  plea  in  bar;  and 
in  such  answer  he  shall  not  be  com- 
pellable to  answer  any  other  matters 
than  he  would  be  compellable  to 
answer  and  discover  upon  filing  a 
plea  in  bar  and  an  answer  in  sup^wrt 
of  such  plea,  touching  the  matters 
set  forth  in  the  bill,  to  avoid  or  repel 
the  bar  or  defense.  Thus,  for  ex- 
ample, a  bona  fide  purchaser,  for 
a  valuable  consideration  without 
notice,  may  set  up  that  defense  by 
way  of  answer  instead  of  plea,  and 
shall  be  entitled  to  the  same  protec- 
tion, and  shall  not  be  compellable  to 
make  any  further  answer  or  discovery 
of  his  title  than  he  would  be  in  any 
answer  in  support  of  such  plea." 


244  DEFENSES  BY  ANSWER.  [§  183. 

requiring  an  answer,  as  we  have  seen,  is  to  elicit  from  the  de- 
fendant the  facts  upon  which  he  bases  his  defense;  therefore, 
if  the  allegations  of  the  bill  show  that  certain  facts  are  within 
his  knowledge,  or  if  the  allegations  are  such  that  such  facts 
appear  to  be  within  the  knowledge,  information  or  belief  of 
the  defendant,  he  will  not  be  allowed  to  answer  evasively,  but 
must  make  positive  and  direct  denial  or  admissions,  or  express 
his  belief  of  their  truth  or  falsity,  or  show  that  as  to  such  facts 
he  has  no  knowledge,  information  or  belief.  Nor  will  the  de- 
fendant be  allowed  to  shelter  himself  behind  equivocal,  evasive 
or  doubtful  terms,  and  thus  mislead  the  complainant;  or  be 
allowed  to  make  evasive  answers  as  to  the  substance  of  the 
matter  in  issue.  Particular  charges  must  be  answered  par- 
ticularly and  precisely.'  Facts  alleged  in  the  bill  must  be  met 
by  facts  alleged  in  the  answer,  either  confessing,  avoiding, 
denying  or  disclaiming  any  knowledge  or  information  con- 
cerning them.  And  it  has  been  said  that  "to  so  much  of  the 
bill  as  is  necessary  and  material  for  the  defendant  to  answer 
he  must  speak  directly  and  without  evasion,  and  must  not 
merely  answer  the  several  charges  literally,  but  must  confess 
or  traverse  the  substance  of  each  charge,  and  whenever  there 
are  particular  precise  charges,  they  must  be  answered  particu- 
larly and  precisel}'^  and  not  in  a  general  manner,  though  the 
general  answer  may  amount  to  a  full  denial  of  the  charges."  * 
This  rule  especially  applies  where  the  allegations  of  the  bill 
charge  the  defendant  with  being  guilty  of  fraud.  Such  allega- 
tions are  material  and  must  be  answered,  and  it  is  not  suffi- 
cient for  the  defendant  to  answer  merely  in  general  terms  that 
he  is  not  guilt}'^  of  fraud,  nor  to  deny  the  allegation  in  its  very 
words,  but  he  will  be  bound  to  answer  fully  the  facts  and  cir- 
cumstances alleged  in  the  bill  as  constituting  the  fraud,  and  to 
explain  directly  and  positively  his  knowledge,  information  or 
belief  with  reference  thereto.  And  so  it  has  been  held  that 
every  allegation  from  which  fraud  can  be  inferred  must  be 

1  Grady  v.  Robinson,  2S  Ala.  289;  304.  the  cliancellor  says:  "If  an  alle- 

Clark  V.  Jones,  41  Ala.  349.  gation  is  made  with  divers  circum- 

2 1  Harr.  Pr.  in  Ch.  222;   Petit  v.  stances,   the    defendant  should   not 

Candler,  3  Wend.  (N.  Y.)  618;  Utica  denyitliterally  as  laid  in  thebill,  but 

Ins.  Co.  V.  Lynch,  3  Paige,  210;  Ar-  should  answer  the  point  of  substance 

lina  V.  Miller,  22  Ga,   330,  342.     In  positively  and  certainly." 
Jones  V.  Wing,  Harr.  Ch.  (Mich.)  301, 


I  183.]  DEFENSES  BY  ANSWER.  245 

fully  answered.^     The  reason  of  the  rule  is  that  the  answer 
should  state  facts  and  not  conclusions  of  law.^ 

In  Raiildn  v.  Rotliaddld^  where  an  answer  to  a  creditor's  bill 
did  not  deny  the  equity  of  the  complainant's  bill,  except  in  an 
attempt  to  assert  that  the  defendant  had  property  liable  to 
execution  which  might  have  been  levied  upon  by  the  sheriff, 
the  bill  being  in  some  respects  a  bill  of  discovery,  it  was  held 
that  such  a  general  assertion  amounted  to  nothing,  and  that 
the  defendant  must  state  what  and  where  the  property  is  that 
the  sheriff  ought  to  but  did  not  seize.  And  where  in  an  answer 
it  was  alleged  thatcertain  lands  were  assessed  beyond  their  cash 
value  and  that  "said  excessive  assessment  was  fraudulent  and 
void,"  it  was  held  that  the  allegation  was  too  general,  and  that  it 
was  insufficient  to  permit  evidence  of  fraud;  that  the  specific  acts 
which  were  claimed  to  constitute  the  fraud  must  be  set  forth.* 

(3)  Tlce  answer  must  he  cert.iin.  This  is  based  upon  the  rule 
that  it  is  necessary  to  employ  such  a  degree  of  certainty  as  will 
inform  the  plaintiff  of  the  nature  of  the  case  to  be  made  against 
hira,  but  it  is  generally  accepted  that  the  same  degree  of  cer- 
tainty is  not  required  in  an  answer  to  an  equity  bill  as  is  re- 
(juired  in  the  bill  itself,  or  in  a  plea,  either  in  chancery  or  at 
law."^  "In  stating  a  defendant's  case  it  is  only  necessary  to 
use  such  a  degree  of  certainty  as  will  inform  the  plaintiff  of 
the  nature  of  the  case  to  be  made  against  bim."^ 

(4)  The  answer  should  not  he  arguiaentative  or  evasive^  for,  as 
we  have  seen,  the  plaintiff  is  entitled  to  a  direct  and  positive  an- 
swer.  This  would  exclude  argumentative  or  evasive  allegations. 

iGray   v.  Regan,  23  Miss.  304.     In  County,  Walk.  Ch.  (Mich.)  90;  Mem- 

Carroll  v.  Potter,  Walk.  Ch.  (Mich.)  phis,  etc.  K.v.  Co.  v.  Neighbors,  51  Miss. 

355,  it  was  held  that  where  the  fraud  412;  Bertine  v.  Varian.  1  Edw.  Ch.  343. 

consisted    of  a   variety  of  circum-  In  Stokes  v.  Farnsworth.  99  Fed.  836, 

stances  the  defense  should  be  made  it  was  held  that  "a  defense  pleaded 

by  answer  and  not  by  plea.     But  in  in  an  answer  cannot  be  stricken  out 

Parkraan  v.  Welsh,  19  Pick.  (Mass.)  on  the  ground  that  it  is  rambling 

231.  it  was  held  that  if  the  answer  and  verbose." 

contain  only  general  denials  of  the  ^78  Mich.  10. 

fraud,   the    charges   would    not   be  *  Attorney-General    v.    Stiles,    83 

taken  as  fraud  and  the  defendant  Mich.  460. 

estopped  to  disprove  them,  but  that  »  Graham  v.  Mason.  4  Cliff.  (U.  S.) 

the  plaintiflf.  to  take  advantage  of  88;  1  Danl.  Ch.  PI.  &  Pr.  714;  Faulder 

such  allegations,  should  except  to  the  v.  Stuart,  11  Ves.  (Eng.)  296. 

answer  for  want  of  particularity.  ^  1  Danl.  Ch.  PI.  &  Pr.  714. 

-  Attorney-General    v.    Oakland 


246  DEFENSES  BY  ANSWER.  [§  ISo. 

(5)  The  answer  must  not  he  scandalous  or  impertinent.  Wliat 
is  scandal  and  impertinence  has  already  been  discussed. •  It 
goes  without  saying  that  the  defendant  would  not  be  allowed 
to  go  outside  of  the  allegations  of  the  bill  to  state  matters  not 
material  to  the  case  made,  or  to  use  language,  or  to  make 
charges,  that  would  be  scandalous  or  improper;  such  matter 
would  be  expunged  by  order  of  the  court.  But  nothing  rel- 
evant can  be  deemed  to  be  scandalous  or  impertinent.  It  is 
not  the  nature  of  the  matter  in  an  answer  which  makes  it 
scandalous;  for  if  the  matter  is  relevant  according  to  the  case 
made  by  the  bill,  whatever  may  be  the  nature  of  such  matters, 
it  is  not  scandalous,  and  it  may  have  an  influence  upon  the  de- 
cision of  the  suit  notwithstanding  the  nature  of  it.-  And  so  it 
has  been  held  that  the  defendant  may  state  any  matter  which 
tends  to  disprove  the  case  made  by  the  bill. 

"The  defendant  in  such  answer  may  set  up  any  matter  show- 
ing that  the  plaintiff  has  no  right  of  action,  and  bring  up  his 
defense,  if  he  have  a  valid  one,  thus  charging  and  discharging 
himself,  or  confessing  and  avoiding  the  allegations  of  the  bill. 
He  has  no  right  to  introduce  impertinent  matter,  but  may  an- 
swer to  any  and  every  matter  going  to  the  true  merits  of  the 
issue  or  issues  involved  in  the  litigation;  and  whether  his  an- 
swer contain  affirmative  irresponsive  allegations  in  avoidance 
of  the  demand,  or  is  purely  resjtonsive,  is  no  more  the  subject- 
matter  of  exception  than  in  an  answer  to  a  bill  for  discovery 
and  relief."  '  And  it  has  been  held  that  all  substantial  doubts 
as  to  whether  the  allegation  is  pertinent  or  not  are  to  be  re- 

1  Ante,  §  40.  Farwell,  62  ^le.  ;U9.    In  Whittemore 

2  In  Mercantile  Trust  Co.  v.  Mo.  v.  Patten.  84  Fed.  51,  it  was  held 
etc.  R.  Co.,  84  Fed.  379,  it  was  held  that  an  allegation  in  the  answer 
that  parts  of  the  answer,  though  that  the  plaintiff  brought  the  suit  in 
immaterial  as  a  defense,  and  though  a  state  distant  from  that  of  the  de- 
in  their  nature  scandalous,  will  not  fendants'  residence,  for  the  purpose 
be  suppressed  on  this  account  when  of  harassing  them  and  involving 
they  tend  to  meet  charges  of  bad  them  in  large  expense,  is  imperti- 
faith  made  in  the  bill.     Story,  Eq.  nent. 

PL,  sec.  862.  The  rule  applied  where,  ^Saltmarsh  v.  Bower,  22  Ala.  221, 

to  a  bill  of  a  tenant  in  common  for  238;  Mitf.   Eq.  PI.,  by  Jeremy.  313; 

an  account  of  earnings  of  a  vessel,  Coop.  Eq.  PI.  318,  319:  Woods  v.  Mor- 

the  answer  averred  a  counter-claim  rell,  1  Johns.  Ch.  103. 106;  Mercantile, 

not  connected  with  the  transaction  etc.  Co.  v.  Mo.  etc.  Ry.  Co.,  84  Fed. 

set  forth  in  the  bill.     Spaulding  v.  379. 


§  183.]  DEFENSES  BY  ANSWER.  247 

solved  in  favor  of  its  pertinency,  and  so  nothing  should  be  ex- 
punged that  a  defendant  has  a  right  to  prove,  and  which  when 
proven  would  have  any  influence  in  deciding  the  case  or  the 
nature  or  extent  of  the  relief  to  which  the  plaintiff  is  entitled.^ 
(6)  The  answer  m.ust  not  contain  inconsistent  defenses.  The 
defendant  in  this  court  may  set  up  as  many  defenses  as  he 
pleases  to  the  bill  of  complaint,  but  they  must  be  consistent 
with  each  other.  But  in  Scanlan  v.  Scanlan  *  it  was  held  that 
where  the  complainant  took  no  exceptions  to  the  answer  con- 
taining inconsistent  defenses,  and  one  of  the  defenses  was  sus- 
tained by  the  proofs,  a  decree  for  defendant  would  not  be  re- 
versed because  of  such  inconsistency.  As  is  said  in  Hopper  v. 
Hopper,^  "  where  the  defendant  is  required  to  swear  to  the 
truth  of  his  answer,  or  at  least  to  his  belief  of  its  truth,  he  can- 
not set  up  two  distinct  defenses  therein  which  are  so  incon- 
sistent with  each  other  that  if  the  matters  constituting  one  de- 
fense are  truly  stated  the  matters  upon  which  the  other  defense 
is  attempted  to  be  based  must  necessarily  be  untrue  in  point 
of  fact.  But  the  defendant  may  deny  the  allegations  upon 
which  the  complainant's  title  to  relief  is  founded,  and  may  at 
the  same  time  set  up  in  his  answer  any  other  matters  not 
wholly  inconsistent  with  such  denial,  as  a  distinct  or  separate 
defense  to  the  claim  for  relief  made  by  the  bill,  or  to  some 
part  thereof."  And  so  it  has  been  held  that  this  rule  applies 
as  well  to  alternative  inconsistent  defenses,  and  that  the  answer 
will  be  bad  if  it  contains  defenses  which  are  inconsistent  even 
though  permitted  to  set  up  defenses  which  are  alternative.'* 

I  Leslie  v.  Leslie.  50  N.  J.  Ch.   155,  ference    whether    the    inconsistent 

24  Atl.  10'29.  defenses  are  each  substantially  re- 

^  134  111.  630,  25  N.  E.  652.  lied  upon  or  are  set  up  in  the  alter- 

3 11  Paige  (N.  Y.),  46.  native;  'that  answer  is  bad  which 

<1  Danl.  Ch.  PI.  &  Pr.  713.     "Al-  eitlier  contains  inconsistent  defenses 

though  a  defendant  may  be  permitted  or  an  alternative  of  inconsistent  de- 

to  set  up,  by  his  answer,  several  de-  fenses.'"    In   Gilbert   v.  Galpin,    11 

fenses,  as  the  consequence  of  the  same  N.  J.  Eq.  445.  it  was   held   that  the 

state  of  facts,  or  of  facts  which  are  defendant  would  not  be  permitted 

consistent  witli  each  other,  a  defend-  to  come  into  court  claiming  to  be 

ant  cannot  insist  upon  two  defenses  the  absolute  owner  of  a  mortgage, 

which    are   inconsistent  with   each  and,  when  the  mortgage  was  shown 

other,  or  are  the  consequence  of  in-  to  be  in  the  hands  of  his  assignee,  to 

consistent  facts.     And,  in  the  appli-  set  up  an  equitable  interest  in  him- 

cation  of  this  rule,  it  makes  no  dif-  self  contrary  to  the  terms  of  the  as- 


248  DEFENSES  BY  ANSWER.  [§  184. 

(7)  The  answer  should  allege  facts^  not  concJusions  merely. 
Allusion  has  already  been  made  to  this  rule.  The  answer 
should  state  facts,  and  not  conclusions  of  law.^  There  seems, 
however,  to  be  an  apparent  exception.  Where  the  defense 
sought  to  be  made  by  the  answer  is  that  the  complainant  has  an 
adequate  remedy  at  law,  such  an  allegation,  although  the 
statement  of  a  conclusion,  is  good,  and  cannot  be  the  subject 
of  an  exception  to  the  answer.- 

§  184.  Defenses  which  may  be  interposed  by  answer.—  It 
may  be  said  to  be  a  general  rule  that  the  defendant  may  insist 
upon  all  matters  of  defense  by  answer  except  such  matters  as 
pertain  to  the  form  of  the  bill,  the  character  of  the  parties, 
or  matters  of  abatement;  any  defense  which  goes  to  the 
merits  of  the  case  generally,  or  in  bar  of  the  action,  may  be 
raised  by  answer.  This  rule  is  in  no  wise  antagonistic  to  the 
rule  permitting  a  plea  to  be  interposed  when  the  case  made  by 
the  bill  may  be  met  by  pleading  in  bar  some  single  salient, 
all-governing  fact  which  is  a  full  and  complete  defense  to  the 
bill,  for  except  in  the  cases  above  mentioned  such  defense  may 
be  raised  by  the  answer.  As,  for  example,  the  defense  of 
usury,  bona  fide  purchaser,  statute  of  limitations  and  laches, 
statute  of  frauds,  res  judicata;  that  the  contract  or  deed  was 
obtained  by  undue  influence  and  want  of  jurisdiction,  and  nu- 
merous other  defenses  that  may  be  raised  by  plea  may  also  be 
raised  by  answer,'  And  so  the  defense  that  the  complainant 
has  a  complete  and  adequate  remed}'  at  law  may  be  interposed 

signment.     And  in  Bannister  v.  Mil-  Black  v.  Miller,  173  III.  489,  58  N.  K 

ler,  54  N.  J.  Eq.  121,  32  Atl.  1066,  it  1009. 

was  held  that  where  the  defendant  ^Defense  of  nmry  brj  answer.  Jen- 
sets  up  certain  facts  as  a  defense  he  kins  v.  Baum,  95  111.  11;  Maher  v. 
cannot,  on  final  hearing,  use  the  Lanfrora,  86  111.  518;  Vroom  v.  Dit- 
same  facts  in  support  of  a  different  mas,  4  Paige  (N.  Y.\  5iG;  Curtis  v. 
defense.  Hummel  v.  Moore,  25  Fed.  Mastin,  11  Paige,  15;  Watson  v.  Conk- 
380;  Scanlan  v.  Scanlan,  134  111.  630,  ling,  24  N.  J.  Eq.  230;  Turrell  v.  By- 
25  N.  R  652.  ard,  24  N.  J.  Eq.  135. 

^  Ante,  %  180,  subd.  2;  Hood  v.  In-  Bona  ^(Repurchaser  for  a  valuable 

man,  4  Johns.  Ch.  437;  McKim   v.  consideration  without  notica     U.  S. 

White  Hall  Co.,  2  Md.  Ch.  510.  Eq.  Rule  39:  Boone  v.  Chiles,  10  Pet. 

-Gould  V.  Edison,  etc.  Co..  60  N.  Y.  (U.  S.)  177;  Wormley  v.  Wormley,  8 

S.  559;  Town  of  Mentz  v.  Coo!c,  108  Wheat.  (U.  S.)  449. 

N.  Y.  504,  508.  15  N.  E.  541 ;  Hawes  Statute  of  limitations  and  laches, 

V.  Dobbs,  137  N.  Y.  465,  33  N.  E.  560;  Gritfith  v.   Griffith,  Hoff.  Ch.  (N.  Y.) 

Wylie  V.  Coxe,  15  How.  (U.  S.)  415;  153;  Nichols  v.  Padfield,  77  111.  253; 


§  184.] 


DEFENSES  BY  ANSWER. 


24a 


by  demurrer  if  it  appears  upon  the  face  of  the  bill,  but  there 
is  no  rule  compelling  the  interposing  of  a  demurrer;  and  this 
defense  ma}'  also  be  raised  by  answer. 

In  Black  v.  Miller  ^  it  was  held  properly  invoked  by  answer 
even  in  a  case  where  defendants  did  not  abide  by  their  de- 
murrer. The  court  say :  "  By  answering  over  after  a  demurrer 
a  party  waives  the  right  to  assign  error  on  the  ruling  of  the 
court  on  his  demurrer,  but  he  does  not  waive  a  defense  which 
he  may  make,  and  does  make,  by  his  answer,  and  which  re- 
quires no  demurrer."  And  where  a  plea  has  been  disallowed 
the  same  defense  may  be  set  up  by  an  answer.*  In  setting  up 
any  of  these  several  defenses  by  answer,  the  facts  and  circum- 
stances upon  which  the  particular  defense  depends  should  be 
fully  set  forth.' 

In  Morris  v.  Taylor^  the  court  say:  "  In  setting  up  a  defense 
of  usury  in  a  suit  in  chancery  the  defendant  must  in  his  answer, 
as  in  any  plea  of  usury  in  an  action  at  law,  set  out  the  par- 
ticular facts  and  circumstances  of  the  supposed  usurious  agree- 
ment that  the  court  may  see  that  the  agreement  was  in  violation 
of  the  statute." 


Highstone  v.  Franks,  93  Mich.  52; 
Pierce  v.  iMcClellan,  93  III.  245;  Van 
Hook  V.  Whitlock.  7  Paige,  376;  Sul- 
livan V,  Portland,  etc.  Ry.,  94  U.  S. 
806. 

Statute  of  frauds.  In  Walker  v. 
Hill's  Ex'rs.  21  N.  J.  Eq.  191,  202,  the 
■rule  is  stated  to  be:  "The  settled 
doctrine  of  the  courts  is  that  if  the 
answer  admits  a  contract,  without 
stating  that  it  was  in  writing,  and 
setting  up  the  statute  of  frauds,  the 
statute  cannot  be  used  as  a  defense. 
The  admission  will  be  held  to  be  of  a 
legal  contract,  that  is,  a  written  one, 
and  no  proof  need  be  oflered  of  it. 
But  if  tlie  pleading  or  answer  denies 
the  existence  of  any  agreement,  the 
plaintiff  will  be  obliged  to  prove  one ; 
and  he  must  prove  a  legal  agreement, 
which  in  cases  within  the  statute  of 
frauds  is  a  written  one."  Cozine  v. 
Graham,  2  Paige,  181;  Vaupell  v. 
Woodward,  2  Sandf.  Ch.  (N.  Y.)  143; 
Wakeman  v.  DoJd,  ■:7  N.  J.  Eq.  564; 


Luton  V.  Badham,  127  N.  G  96,  37 
S.  K  143. 

Res  judicata.  Arnold  v.  Kyle,  8 
Baxt.  (Tenn.)  319.  But  in  Battell  v. 
xMatot,  58  Vt  271,  and  Pierce  v.  Pa- 
gans, 39  Fed.  587,  the  holding  ap- 
I  eared  to  be  that  a  former  suit  pend- 
ing must  be  taken  advantage  of  by 
plea  and  not  by  answer. 

Want  of  jurisdiction.  Ryan  v. 
Duncan,  88  111.  144;  Whitlock  v.  Duf- 
field.  Hoff.  Ch.  (N.  Y.)  122;  Bank  v. 
Mersereau,  3  Barb.  Ch.  574. 

1 173  111.  489. 

'^  Ringgold  v.  Stone,  20  Ark.  526. 

'Tenney  v.  State  Bank,  20  Wis. 
161;  Peck  v.  School  District,  21  Wis. 
516. 

47  C.  K  Green  (22  N.  J.  Eq.)  438; 
Homeopathic,  etc.  Co.  v.  Crane,  25 
N.  J.  Eq.  418.  In  Hoskins  v.  Cole,  34 
III.  App.  541,  held,  that  the  answer 
interposing  a  defense  of  usury  must 
set  out  specifically  in  what  the 
usury  consists. 


250  DEFENSES  BY  ANSWER.  [§§  185,  186. 

§  185.  The  answer  maybe  used  in  conjunction  ^vitl:  otiier 
defenses. —  Every  material  allegation  in  the  bill  of  complaint 
must  be  met  by  the  defendant.     This  is  a  right  of  the  com- 
plainant which  he  can  enforce;  the  bill  filed  by  him  in  the 
cause  demands  the  attention  of  the  defendant  in  some  of  the 
ways  provided  for  defending  against  it.     The  defendant,  how- 
ever, by  way  of  defense,  as  we  have  seen,  may  demur,  plead, 
or  answer  the  bill  of  complaint,  or  he  may  disclaim;  but  in  some 
one  of  the  ways  provided,  he  must  meet  the  material  allega- 
tions of  the  bill.    He  may  use  several  modes  of  defense  in  con- 
junction with  each  other  where  they  are  proper  nnd  used  in  a 
proper  manner.     As,  for  example,  he  may  answer  a  part  of  the 
bill  and  plead  to  a  part,  and  disclaim  to  a  part.     And  where  a 
plea  is  only  to  a  part  of  the  bill  the  defendant  must  answer 
the  residue,  unless  it  be  subject  to  a  demurrer,  for  the  reason 
that  the  whole  of  the  bill  of  complaint  must  be  met  by  the 
answer  and   not  a  portion  of  it  only.'     But  the  several  de- 
fenses, as,  for  example,  the  plea  and  the  answer,  cannot  be  in- 
terposed to  the  same  subject  or  part  of  the  bill  of  complaint, 
but  must  clearly  refer  to  separate  and  distinct  parts;  for  if 
they  are  to  the  same  part,  or  the  same  subject,  the  answer 
would  overrule  the  other  defenses.^     But  this  rule  can  only  be 
invoked  where  the  several    pleadings   are  by    the    same  de- 
fendant.    As,  for  example,  a  demurrer  by  one  co-defendant 
would  not  be  held  to  be  overruled  by  a  plea  or  answer  of 
another  co-defendant.' 

§  186.  Answer  may  contain  several  defenses. —  The  de- 
fendant is  not  limited  in  his  answer  to  a  single  defense. 
"  More  than  one  defense  may  be  presented  in  the  answer,  but 

1  Ferguson  V.  O'Harra,  8  Fed.  Cas.  pleaded,   the  answer  overrules  the 

No.  4,740;  Graves  v.  Blondell.  70  Me,  plea."    Brownell  v.  Curtis,  10  Paige, 

190;   Leacraft  v.  Demprey,  4  Paige  210;  Bolton  v.  Gardner,  3  Paige  (N. 

(N.  Y.),  124;  U.  S.  Eq.  Rule  32.  Y.),  273;  Clark  v.  Phelps,  6  Johns.  Ch. 

2 In  Clark  v.  Saginaw  City  Bank,  214;  Livingston  v.  Story,  9  Pet  (U. 

Harr.  Ch.  (Mich.)  240,  the  clmncelior  S.)  632;  Bruen  v.  Bruen,  4  Edw,  Ch, 

said:    "The   defendants   may    plead  (N.  Y.)  640;  Spoflford  v.  Manning,  6 

to  one  part  of  the  bill  and  answer  to  Paige,  383;  Fieri   v.  Shieldsboro,  42 

another  part;    but    these    defenses  Mis.s.  498. 

must  clearly  refer  to  separate  and  *  Daken  v.  Union  Pac.  Ry.  Co.,  5 

distinct  parts  of  the  bill.     If  the  de-  Fed.  665.    U.  S.  Eq.  Rule  37  provides: 

fendants  have  answered  to  any  part  "No  demurrer  or  plea  shall  be  held 

of    the    bill    to    which    they    have  bad  and  overruled  upon  argument. 


§  187.]  DEFENSES  BY  ANSWER.  251 

each  should  be  separately  and  clearly  alleged  without  any 
conditions  or  undefined  qualifications."^  AVhile  the  defend- 
ant is  permitted  to  set  up  several  distinct  defenses  in  his  an- 
swer to  the  same  allegations  of  fact  in  the  bill,  he  will  not  be 
permitted  to  insist  on  two  or  more  defenses  which  are  incon- 
sistent with  each  other,  or  which  depend  upon  inconsistent 
facts,  and  it  makes  no  difference  whether  the  inconsistent  de- 
fenses are  each  substantially  relied  upon,  but  are  set  up  in  the 
alternative;  the  answer  is  bad  which  either  contains  inconsist- 
ent defenses  or  an  alternative  of  inconsistent  defenses.' 

In  Holton  v.  Guinn^  it  was  held  that,  under  United  States 
Equity  Rule  39,  a  defendant  is  entitled  in  his  answer  "to  in- 
sist upon  all  matters  of  defense  in  bar  of  or  to  the  merits  of 
the  bill." 

In  Hopper  v.  Ilopper*  it  was  said:  "  Where  the  defendant  is 
required  to  swear  to  the  truth  of  his  answer,  or  at  least  to  his 
belief  of  its  truth,  he  cannot  set  up  two  distinct  defenses 
therein  which  are  so  inconsistent  with  each  other  that,  if  the 
matters  constituting  one  defense  are  truly  stated,  the  matters 
upon  which  the  other  defense  is  attenij)ted  to  be  based  must 
necessarily  be  untrue  in  point  of  fact.  i5ut  the  defendant  may 
deny  the  allegations  upon  which  the  complainant's  title  to  re- 
lief is  founded,  and  may  at  the  same  time  set  up,  in  his  answer, 
any  other  matters  not  wholly  inconsistent  with  such  denial,  as 
a  distinct  or  separate  defense  to  the  claim  for  relief  made  by 
the  bill,  or  to  some  part  thereof."  The  rule  may,  therefore, 
be  said  to  be  that  any  and  all  facts  which  the  defendant  is  en- 
titled to  prove  in  his  defense  to  the  case  made  by  the  bill  may 
be  set  out  and  relied  upon  in  the  answer,  provided  the  facts 
relied  upon  are  consistent  with  each  other.* 

g  187.  Discovery. —  Since  statutes  in  the  United  States  and 
the  several  states  of  the  Union  have  been  enacted  permitting 
parties  to  be  called  as  witnesses,  bills  of  discovery  and  inter- 
rogatories seeking  discovery  have  not  been  considered  so  im- 

only  because  the  answer  of  the  de-  ^i  Danl.  Ch.  PL  &  Pr.  713;  Sharp 

fendant  may  extend  to  some  part  of  v.  Carlile,  35  Ky.  (5  Dana).  487. 

the  same  matter  as  may  be  covered  ^65  Fed,  450;  U.  S.  Eq.  Rule  39. 

by  such  demurrer  or  plea."  *  11  Paige  (N.  Y.),  46. 

1  Graham  et  al.  v.  Mason,  4  Cliff.  'Van  Schroder  v.  Brittain.  98  Fed. 

(U.  S.)  88,  Fed.  Cas.  No.  5,671.  169. 


252  DEFENSES  BY  ANSWER.  [§  1S7. 

portant.  But  where  the  bill  contains  in  its  prayer  interro;^- 
atories  to  the  defendant  eliciting  facts  material  to  the  plaintiff's 
case,  the  defendant  in  his  answer  must  answer  these  inlerrog- 
atories  if  they  are  proper  and  of  such  a  nature  as  to  demand 
an  answer;  and  it  cannot  be  said  that  only  such  bills  as  con- 
tain direct  interroiratories  to  the  defendant  are  bills  of  discov- 
cry,  for  every  bill  which  prays  for  an  answer  to  its  material 
allegations  is  to  some  extent  such  a  bill,  entitling  the  plaintiff 
to  a  discovery,  from  the  defendant  in  his  answer,  of  the  facts 
soujrht;  but  the  rule  is  often  invoked  and  stated  that  the  alle- 
gations  of  the  bill,  in  order  to  merit  an  answer,  must  be  mate- 
rial. If  the  facts  elicited  are  immaterial  to  the  case  sought  to 
be  made  by  the  bill,  or  if  the  discovery  sought  is  immaterial, 
the  defendant  need  not  answer  but  may  demur  to  this  part  of 
the  bill.'  Xor  will  the  defendant  be  obliged  to  make  disclos- 
ure of  facts  which  will  subject  him  to  punishment,  penalty  or 
forfeiture,  or  to  a  criminal  prosecution;  but  in  order  to  be  ex- 
cused from  making  discovery  in  such  cases  it  must  appear  by 
the  bill  or  by  his  answer  that  such  consequences  will  follow 
or  he  will  be  compelled  to  answer;  for  the  rule  is  general  and 
without  exception  -'  that  defendant  cannot  avail  himself  of  this 


1  Story.  Eq.  PL,  sees.  563.  564:  But-  notwithstanding  there  may  be  par- 
ler  V.  Catling,  1  Root  (Conn.),  310:  ticular  objections  to  answering  such 
White's  Heirs  v.  White's  Adm'x.  33  charge  or  allegation,  not  applicable 
Ky.  (3  Dana).  374;  Hagthorp  v.  Hook,  to  the  whole  bill. —  has  many  excep- 
1  Gill  &  J.  (Md.)  270.  tions:  as  where  an  answer  to  such 

2  In  Wolf  V.  Wolf.  2  Har.  &  Gill  charge  or  allegation  would  subject 
(Md.),  382.  18  Am.  Dec.  313,  it  was  defendant  to  a  penalty  or  forfeiture, 
held  that  where  a  crime  was  charged  or  would  criminate  him,  or  would 
in  the  bill  the  defendant  would  not  be  immaterial  to  com]>Iainant'9  case, 
be  compelled  to  confess  the  facts  or  would  require  him  to  disclose 
charged,  or  any  fact  which  might  some  fact  which  he  is  not  bound  by 
furnish  evidence  for  the  prosecution,  law  to  disclose.  But  when  the  rule 
should  any  person  choose  to  indict  is  understood  in  its  more  restricted 
him.  and    correct    sense,    it   means   that 

In    Gilkey  v.    Paige.    Walk.    Ch.  when   a   defendant  who   might,  by 

(Mich.)    520,    the    chancellor     said:  demurrer  or  plea  to  the  whole  bill, 

"The  rule  that,  if  a  defendant  sub-  have   protected    himself    ngainst  a 

mits  to  answer  a  bill,  he  is  bound  to  particular  discovery,  submits  to  an- 

answer  it  fully,  when  understood  to  swer    the    whole    bill,    he    thereby 

mean  he  must  answer  every  partic-  waives  a  right,  having  its  origin  in 

ular  charge  or  allegation  in  the  bill,  the  rules  of  pleading,  and  which  is 


^  ^33 -1  DEFENSES  BY  .VNSWER.  25^ 

exemption  unless  it  clearly  appears  in  the  bill  of  complaint 
that  sufficient  reasons  exist  why  he  should  not  discover  the 
f.cts  or  it  is  fully  shown  by  allegations  in  the  answer  that  he 
is  entitled  to  such  exemption.^    But  where  the  discovery  merely 
subjects  him  to  the  loss  of  his  claim,  or  to  prejudice  of  pecun- 
iarv  interests,  he  will  not  be  exempted.     And  where  the  de- 
fendant is  charged  with  fraud  in  the  matter  in  controversy, 
the  allegations  in  the  bill  being  material  and  affectmg  the 
plaintiff's  right  of  recovery,  the  defendant  will  be  required  to 
answer,  either  denying  or  confessing,  avoiding  and  explaming 
the  allegations  of  fraud.      And  so  where  the  answer  would 
involve  a  breach  of  professional  confidence,  or  would  discover 
facts  respecting  his  own  title  when  it  is  in  controversy,  or 
where  the  allegations  in  the  bill  are  scandalous,  impertinent 
immaterial  and  irrelevant,  the  defendant  will  not  be  required 

to  answer.^ 

§  188.  The  answer  as  to  matters  of  discovery  must  be  re- 
sponsive.—If  there  are  no  reasons  which  will  excuse  the  de^ 
fendant  from  answering  the  allegations  or  interrogatories  in 
the  bill  of  complaint,  or  if  the  defendant  elects  to  answer,  he 
must  fully  and  m  direct  and  unequivocal  terms  answer  every 
material  fact  alleged  in  the  bill  about  which  he  is  interrogated, 
and  his  answer  must  be  responsive.  He  can  answer  by  either 
denyino-  the  allegations,  admitting  them  as  alleged,  confess- 
ing and  avoiding  them,  or  by  stating  that  he  has  no  knowledge, 

incident  to  a  particular  mode  of  de-     lar  questions     The  submission  toan- 

fense-  and  must  answer  as  fully  as    swer  concludes  him  as  to  that,  but 

in  any  other  case.  no  further     The  rule  dec.des  only 

"Mr.  Wigram  says:     'The  proper    that  an  answer  which  is  the  result 

explanation  of  the  rule  is,  that,  if  a    of  choice  is  subject  to  the  same  rules 

defendant  who  might  have  defended     as  an  answer  from  necessity      Wig- 

tmTelf    by  demurrer    or  plea,    and     ram  on  Discovery,  193."    Atterberry 

trrebv  escape  from  the  necessity  of    v.  Knox,  38  Ky.  (8  D-aJ    282;  Win- 

'nswering  all  or    part  of  the  bill,     son  v.  Bailey,  55  N.  H.  218;  Legge  t 

has  waived  those  modes  of  defense,     v.  Postley,  2  Paige  (N.  Y.,.  509;  Bank. 

and  elected  to  make  his  defense  by    etc.  v.  Biddle.  2  Pars.  Eq  (Pa.)  Cases. 

answer,    he    cannot    urge    the    de-    31;  Union  Bank  v.  Barker.  3  Barb. 

murrable  character  of  the  bill  only,     Ch.  (N.  Y.)  3o8. 

or   that   a    plea    might    have  been        i  Dyer  v.  Martm.  5  IlL  (4  Scam.) 
successfully  pleaded  to  it  only,- as    146. 
a  reason  for  not  answering  particu-        2  Story,  Eq.  PI.  84b. 


254  DEFENSES  BY  ANSWER.  [§  188. 

information  or  belief  as  to  the  facts  alleged,  or  about  which 
he  is  interrogated;  it  is  not  enough  that  he  state  that  he  has 
no  knowledge;  he  must  go  farther  and  allege  that  he  has  no 
information  or  belief  upon  the  subject,  for  at  the  hearing  the 
plaintiff  and  the  court  is  entitled  to  know  the  defendant's  state 
of  mind  touching  the  material  facts  involved  and  to  which  r,n 
answer  is  sought.  "Nothing  is  more  clear  in  principle  than 
the  rule  that,  in  the  case  of  an  interrogatory,  pertinent  to  a 
charge  in  the  bill,  requiring  the  defendant  to  answer  it  'as  to 
his  knowledge,  remembrance,  information  and  belief  (which 
is  the  usual  formulary),  it  is  not  sufficient  for  the  defendant 
to  answer  as  to  his  knowledge,  but  he  must  answer  also  as  to 
his  information  and  belief.  The  plain  reason  is,  that  the  ad- 
mission may  be  of  use  to  the  plaintiff  as  proof,  if  the  defend- 
ant should  answer  as  to  his  belief  in  the  affirmative,  without 
qualification.  Tlius,  although  a  defendant  should  state  that 
he  has  no  knowledge  of  the  fact  charged,  if  he  should  also 
state  that  he  has  been  informed  and  believes  it  to  be  true,  or 
simply  that  he  believes  it  to  be  true,  without  adding  any  quali- 
fication thereto,  such  as  that  he  does  not  know  it  of  his  own 
knowledge  to  be  so,  and  therefore  he  does  not  admit  the  same, 
it  would  be  taken  by  the  court  as  a  fact  admitted  or  proved; 
for  the  rule  in  equity  generally  (although  not  universally)  is, 
that  what  the  defendant  believes  the  court  will  believe.  The 
rule  might,  perhaps,  be  more  exactly  stated,  as  to  its  real 
foundation,  by  saying  tiiat  whatever  allegation  of  fact  the  de- 
fendant does  not  choose  directly  to  deny,  but  states  his  belief 
thereof,  amounts  to  an  admission  on  his  part  of  its  truth,  or 
that  he  does  not  mean  to  put  it  in  issue  as  a  matter  of  contro- 
versy in  the  cause.  But  a  mere  statement  by  the  defendant 
in  his  answer  that  he  has  no  knowledge  that  the  fact  is  as 
stated,  without  any  answer  as  to  his  belief  concerning  it, 
will  not  be  such  an  admission  as  can  be  received  as  evidence 
of  the  fact.  Such  an  answer  is  insufficient;  and,  therefore, 
the  defect  properly  constitutes  a  matter  of  exception  thereto, 
since  it  deprives  the  plaintiff  of  the  benefit  of  an  admission  to 
which  he  is  justly  entitled.  However,  courts  of  equity  do  not, 
in  this  respect,  act  with  rigid  and  technical  exactness  as  to 
the  manner  in  which  the  defendant  states  his  belief  or  disbe- 
lief, if  it  can  be  fairly  gathered  from  the  whole  of  that  part  of 


§  189.]  DEFENSES  BY  ANSWER.  255 

the  answer  what  is,  according  to  the  intention  of  the  defend- 
ant, the  fair  result  of  its  allegations."* 

By  Rule  39  (United  States  Equity  Rules)  it  is  provided  that 
the  defendant  may  protect  himself  from  answering  fully  as  to 
the  discovery  sought  where  he  might  have  done  so  by  inter- 
posing a  plea,  and  in  his  answer  he  shall  not  be  compelled  to 
answer  any  other  matters  than  he  would  be  compelled  to  an- 
swer and  discover  on  filing  a  plea  in  bar  and  an  answer  in 
support  thereof.  As,  for  example,  "a  honajide  purchaser  for 
a  valuable  consideration  without  notice  may  set  up  that  de- 
fense by  way  of  answer  instead  of  plea,  and  shall  be  entitled 
to  the  same  protection,  and  shall  not  be  compellable  to  make 
any  further  answer  or  discovery  of  his  title  than  he  would  be 
in  any  answer  in  support  of  such  plea."- 

§  180.  The  answer  when  there  are  several  defendants. — 
If  there  is  more  than  one  defendant  they  may  answer  jointly 
or  severally,  depending  somewhat  upon  whether  their  inter- 
ests and  defenses  are  joint  or  several,  and  whether  they  appear 
by  the  same  solicitor.  If  their  interests  are  the  same  and  they 
appear  by  the  same  solicitor,  they  ought  to  answer  jointly ;  but 
there  is  no  rule  requiring  defendants,  even  though  they  have 
joint  interests,  to  answer  jointly.  It  is  said  that  "  where  the 
same  solicitor  has  been  employed  for  two  or  more  defendants, 
and  separate  answers  have  been  filed,  or  other  proceeding's 
had  by  or  for  two  or  more  of  such  defendants  separately,  the 
taxing  master  will  consider,  in  the  taxation  of  such  solicitor's 
bill  of  costs,  either  between  party  and  pai'ty,  or  between  solic- 
itor and  client,  whether  such  separate  answers  or  other  pro- 
ceedings were  necessary  or  proper;  and  if  he  is  of  opinion  that 
any  part  of  the  costs  occasioned  thereby  has  been  unnecessa- 
rily or  improperly  incurred,  the  same  will  be  disallowed."  ^ 
The  rule  as  it  generally  obtains  is  that  when  there  are  several 
defendants  having  joint  interests,  even  though  appearing  by 
the  same  solicitor,   they   may  answer  the   bill  of  complaint 

1  Brooks  V.  Byam,  1  Story,  296,  301;  ruff,   5   Mo.    40,   31    Am.    Dec    194; 

Kittridge,  etc.  v.  Cianuount,  1  Wool  Moors  v.  Moors,  17  N.  H.  481. 

&  M,  (U.  S.),  244,  Fed.  Cas.  No.  7,859;  2  u.  s.  Eq.  Rule  39. 

Fulton  Co.  V.  Miss.  etc.  Co..  21  111.  3  1  Daul.  Cli.  PI.  &  Pr.  730;  Pentzv. 

{11  Peck.)    338;  Barbee  v.  Innian.  i5  Havvley,  2  Barb.  (N.  Y.)  5r)2, 
Blackf.  (Ind.)  439;  Wilson  v.  WooJ- 


256  DEFENSES  BY  ANSWER.  [§  190. 

jointly  and  severally.  It  has  been  held,  and  is  no  doubt  the 
rule,  that  when  an  answer  is  filed  as  the  joint  and  several  an- 
swer of  several  defendants,  and  is  not  sworn  to  by  all  of  them, 
it  will  be  insufficient  and  will  be  stricken  from  the  files.' 

When  defendants  answer  jointly,  or,  as  is  more  commonly 
the  case,  jointly  and  severally,  and  there  are  certain  allega- 
tions in  the  bill  which  pertain  to  but  one  of  the  defendants  — 
as,  for  example,  where  discovery  is  sought  from  only  one, —  that 
defendant  may  severally  answer  as  to  such  allegations.  Or,  if 
there  are  certain  defenses  aside  from  the  joint  defense  that 
one  of  the  defendants,  or  one  or  more  of  them,  rely  upon  as 
being  personal  to  them,  such  defendant  or  defendants  may 
answer,  setting  up  these  defenses  and  incorporate  allegations 
in  the  answer  in  respect  thereto  which  are  personal  to  them. 
But  when  the  several  answer  is  thus  made  in  the  same  instru- 
ment, and  as  a  part  of  a  joint  and  several  answer,  it  should  be 
so  stated  that  the  plaintiff  and  the  court  may  know  that  it 
is  the  several  answer  of  one,  or  one  or  more,  of  the  defendants. 
It  has  been  universally  held  that  "  where  there  is  a  unity  of 
interest  (between  defendants),  an  answer  and  successful  de- 
fense on  the  part  of  one  defendant  inures  to  the  benefit  of  the 
other."  2  If  several  defendants  join  in  making  a  joint  and 
several  answer,  or  a  joint  answer,  it  should  be  so  stated,  and 
is  generally  in  the  following  language:  The  joint  and  several 
answer  of  A.  B.,  C.  D.  and  E.  F.  to  the  bill  of  complaint  of 
J.  K.,  etc. 

§  190.  The  frame  of  the  answer.— Ko  fixed  form  of  words 
is  required  for  an  answer.  From  its  very  nature  it  must 
conform  to,  and  be  entirely  influenced  by,  the  several  allega- 
tions in  the  bill  of  complaint  to  be  answered.  The  case  made, 
the  allegations  of  fact  set  forth,  and  the  discovery  sought  will 
be  the  guide  of  the  solicitor  in  drafting  an  answer;  it  may  be 
said,  however,  that  the  answer  has  certain  formal  parts  that 
are  usually  followed. 

1  Bailey,  etc.  Co.  v.  Young  et  al,  12  2  Driver  v.  Wliite  (Tenn.  Ch.  App., 

Blatchf.  (U.  S.)  199;  Cook  v.  Dews,  2  1898).  51  S.  W.  994;  Plum  v.  Smith,  56 

Tenn.   Ch.   496.     Held,    the  answer  N.  J.  Eq.  468;  Tate  v.  Fields,  56  N.  J. 

must   be  sworn   to  by  each  of  the  Eq.  H5:  Butler  v.  Kinzie,  90  Tenn.  31^ 

defendants  where  the  answer  under  15  S.  W.  1068. 
oath  is  not  waived.     Fulton  Bauk  v. 
Beach,  2  Paige  (N.  Y.),  307. 


§  190.]  DEFENSES  BY  ANSWEB.  257 

The  answer  should  contain: 

State  of , 


1.  The  title  of  the      The  Circuit  Court  for  the  County  of ,  in 

court*  /-^  1 

Chancery. 
Or,  if  the  case  is  in  the  United  States  court,  it  should  be  en- 
titled in  that  court;  the  title  of  the  cause  following  the  rules 
that  obtain  as  to  entitling  the  court  in  the  jurisdiction  where 

the  answer  is  filed. 

John  Jones,  Complainant, 

V. 

William  Smith,  Defendant. 

2.  The  title  of  the  r^j.  William  Smith,  Samuel  Green  and  James  Clark, 

cause.  "-  1     ,.        ,  J  7  •        ji 

deiendants.  a^  the  ccuse  may  oe,  naming  toe  sev- 
eral defendanU\ 

The  title  of  the  cause  should  bo  given  in  the  answer  for  the 
reason  that  a  case  is  pending,  the  plaintiff  has  appeared  and 
filed  his  bill,  the  defendant  has  been  summoned  and  has  ap- 
peared. 

The  answer  of  William  Smith  to  the  bill  of 
complaint  of  John  Jones.    [6>r,  if  there  are  several 

3.  Title  of  the       defendants,  the  ioint  and  several  answer  of  Will- 
answer.  .    «/  ,        .    ,        ,.         ''        ,    ^,  II  /  ,1        I      i       iL 

lam  t^mlth,  l^aInuel  Green  and  James  Clark  to  the 
bill  of  complaint  of  John  ^  ones,  as  the  case  maybe.] 

If  the  bill  of  complaint  has  been  amended,  then  "  the  answer 
of  William  Smith  [<or,  William  Smith  and  the  other  defend- 
ants] to  the  amended  bill  of  complaint  of  John  Jones,  the 
complainant."  Or,  if  it  be  an  amended  answer,  then  "  the 
amended  answer  of  William  Smith,  the  defendant,  to  the  bill 
of  complainant  of  John  Jones,  the  complainant."  Or,  if  there 
has  been  a  supplemental  bill,  "  the  answer  of  William  Smith, 
the  defendant,  to  the  supplemental  bill  of  complaint  of  John 
Jones,  the  complainant."  If  it  is  tlie  answer  of  infants,  by 
their  guardians  ad  litem,  then  "  the  answer  of  C.  D.,  an  infant 
under  the  age  of  twenty-one  years,  by  E.  F.,  his  guardian 
ad  litem,  to  the  bill  of  complaint  of  John  Jones,  the  com- 
plainant." 

This  defendant,  now  and  at  all  times  hereafter 
saving  to  himself  all  manner  of  benefit  and  ad- 
vantage of  exception  which  can  and  may  be  had 
or  taken  to  the  many  errors,  uncertainties  and 
other  imperfections  in  the  said  bill  contained,  for 
answer  thereto,  and  to  so  much  and  such  part 

17 


258 


DEFENSES  BY  ANSWER, 


[§  190. 


4.  Protestation 
or  reservation 
clause. 


5.  Body  of  the 
answer. 


thereof  as  this  defendant  is  advised  it  is  or  are 
material  or  necessary  for  him  to  make  answer 
unto,  answering  savs:    Or  (a  short  form): 

This  defendant,  reservins:  to  himself  all  right  of 
exception  to  the  said  bill  ol^  complaint,  for  answer 
thereto  suvs:  [Or  if  there  are  several  defendants:] 
These  defendants,  now  and  all  times  hereafter 
saving  and  reserving  to  themselves,  etc.,  as  above. 
Or,  these  defendants,  reserving  to  themselves  all 
right  of  exceptions  to  the  said  bill  of  complaint, 
for  answer  thereto,  say,  etc. 

I.  He  admits  that  on  the  10th  day  of  March, 
1901,  he  was  the  owner  and  in  possession  of  the 

W.  i  of  the  N.  E.  \  of  section ,  in  township 

^  north,  of  range east,  in  said  county  of 

and  state  of ,  and   that  on   that  day  he 

entered  into  a  certain  written  agreement  with 
the  complainant  in  this  cause  for  the  sale  of  said 
described  premises,  which  said  written  agreement 
was  executed  and  delivered  as  alleged  in  said  bill 
of  complaint. 

II.  He  admits  that  by  the  said  agreement  so 
executed  and  delivered  he  covenanted  and  agreed 
for  himself,  his  heirs,  executors  and  administra- 
tors, for  and  in  consideration  of  $5,000  to  be  paid 
to  him.  as  set  forth  in  said  bill  of  complaint,  to 
convey  by  good  and  sulticient  warranty  deed  in 
fee  simple  to  the  comphiinant,  his  heirs  or  as- 
signs, the  piece  or  parcel  of  land  described  in  said 
agreement,  and  admits  that  in  and  by  said  con- 
tract and  agreement  the  said  complainant  cove- 
nanted to  pay  to  him.  this  defendant,  the  amounts 
as  set  forth  in  said  bill  of  complaint,  to  wit:  $50U 
at  the  time  of  executing  said  agreement,  $1,OOU 
in  six  months  from  the  delivery  of  said  agreement, 
and  the  balance  of  said  $5,000  as  follows:  $3,500 
on  the  10th  day  of  ]\Iarch,  1902,  with  interest  on 
all  unpaid  amounts,  as  by  said  agreement  will  ap- 
pear, and  admits  that  Exhibit  "  A,"  attached  to 
said  complainant's  bill  of  complaint,  is  a  copy  of 
said  contract  and  agreement. 

III.  This  defendant  denies  that  the  said  com- 
plainant complied  with  or  performed  the  terms  of 
said  agreement,  or  that  he  paid  to  him,  this  de- 
fendant, the  said  second  payment  in  said  agree- 
ment mentioned  and  set  forth,  to  wit,  the  sum  of 
$1,000  on  the  loth  day  of  September,  A.  D.  1901, 
or  at  any  other  time:  "but,  on  the  contrary,  alleges 


§  190.] 


DEFENSES  BY  ANSWER.  ^^^ 


that  the  said  amount  is  due  and  has  never  been 
paid  by  the  said  complainant. 

IV    This  defendant,  further  answering,  denies 
that  on  the  loth  day  of  March,  1902,  or  at  any 
time,  the  said  complainant,  undertaking  to  fu  ti  1, 
keep  and  perform  his  said  agreement,  ottered  to 
pay  the  full  amount  remaining  due  upon  said  con- 
tnict  to  him,  this  defendant,  or  that  he  then  and 
there  requested  him,  this  defendant,  to  execute 
and  deliver  to  hira  a  good  and  sulticient  warrantee 
deed  of  said  described  premises  on  account  of  tlie 
offer  or  tender  of  said  amount;  or  that  he  tlien 
and  there  refused,  or  that  he  still  refuses,  to  com- 
ply with  his  agreement  and  undertaking  and  con- 
tract, and  deliver  to  the  complainant  a  deed  ot 
said  lands.     On  the  contrary,  this  detendant  al- 
leo-es  that  he  is  and  has  been  at  all  times  ready 
and  willing  to  comply  fully  with  his  agreement 
and  undertaking  upon  the  payment  to  him  ot  tho 
amount  set  forth  in  said  contract,  but  that  the 
said  complainant  has  hitherto  and  does  now  neg- 
lect and  reluse  to  pay  said  amounts  as  therein  he 
covenanted  and  agreed  to  do   [ttc.    etc  ,  settinj 
uv  ichatevev  defemes  defendant  may  have]. 

And  this  defendant  denies  all  and  all  mannor 
of  unlawful  combination  and  confederacy  where- 
with he  is  by  the  said  bill  charged,  without  this, 
that  there  is  anv  other  matter,  cause  or  thing  m 
the  complainant's  said  bill  of  complaint  contained, 
'SfZ^'-  material  or  necessary  for  this  defendant  to  make 
answer  unto  and  not  herein  and  hereby  well  anc 
suliiciently  answered,  confessed,  traversed  and 
avoided  or  denied,  is  true  to  the  knowledge  or 
belief  of  this  defendant.  ,.     ,^      i     ^ 

All  of  which  matters  and  things  this  detendant 
is  ready  and  willing  to  aver,  maintain  and  prove, 
as  thislionorable  court  shall  direct;  and  prays  to 
7.  Prayer.            be  hcuce  dismissed  with  his  reasonable  costs  and 
char-'-es  in  this  behalf  most  wrongfully  sustained. 
° William  Smith. 

Solicitor  for  Defendant. 
If  the  answer  is  required  to  be  sworn  to,  then  the  following 
affidavits  should  be  attached: 

State   of  ,  )  gg^ 

County  of .  ) 

On  this day  of ,  A.  D.  19—   before 

me  personally  appeared  William  Smith  and  made 


260  DEFENSES  BY  xVNSWER.  [^  191. 

oath  that  he  has  read  [or,  heard  roadj  the  above 

8.  Affidavit  to  an-  answer  subscribed   by  him,  and   knows  the  con- 

®^®'""         tents  thereof,  and  that  the  same  is  true  of  his  own 

knowledo^e,   except   as   to   sucli    matters   as   are 

therein  stated  on  iiis  information  and  belief,  and 

as  to  those  matters  he  believes  them  to  be  true. 

,  Notary  Fublic. 

§  191.  Signing  and  swearing  to  the  answer.— The  an- 
swer should  be  signed  by  the  defendant  personally  unless  he 
answers  through  a  representative,  as  a  guardian  or  a  trustee, 
or  some  person  legally  entitled  to  represent  )nm  and  through 
whom  his  defense  is  made.  If  the  answer  under  oath  is 
waived  in  the  bill,  the  solicitor  may  sign  the  answer  lor  the 
defendant,  but  if  a  sworn  answer  is  required  (and  it  is  if  not 
waived)  the  defendant  must  sign,  if  he  i)ersonally  makes  the 
answer,  as  he  must  swear  to  its  contents.  If  the  defense  is 
made  through  a  representative,  as  by  guardian,  trustee,  or  some 
person  legally  representing  the  defendant,  it  must,  if  a  sworn 
answer  is  required,  be  signed  by  such  representative. 

A  complainant  filing  a  bill  against  a  corporation  may  de- 
mand a  sworn  answer,  or  rather  may  omit  to  waive  an  answer 
under  oath  in  the  bill,  but  a  sworn  answer  from  a  corporation 
cannot  be  compelled ;  but  facts  which  the  complainant  seeks  to 
discover  are  generally  asked  for  from  the  officers  or  persons  in 
charge  of  the  corporation  and  not  from  the  corporation  itself, 
and  so  in  such  case  the  complainant  should  join  these  several 
officers  as  parties  to  the  bill.  In  such  case  the  answer  will  be 
signed  by  some  officer  having  authority  to  do  so,  subscribing 
the  corporate  name  and  attaching  the  corporate  seal  —  as,  for 
example,  the  president;  and  the  officers  made  parties  defend- 
ant by  the  bill  of  complaint  will  verify  it  for  themselves  and 
as  officers  of  the  corporation. 

In  BeeoJier  v.  Anderson^  the  court  say:  "The  answer  of  a 
corporation  is  not  required  to  be  sworn  to,  but  is  put  in  with- 
out oath  under  the  corporate  seal.'-  If  a  discovery  is  required, 
individual  members  of  the  corporation  may  be  called  upon  to 

1  45  Mich.  543,  553.  (U.  S.  C.  C.)  601;  Vermilyea  v.  Ful- 

2  Wych  V.  Meal,  3  Peere  Wms.  310;  ton  Bank,  1  Paige  (N.  Y.).  37;  Balti- 
Dummer  V.Chippenham,  14  Ves.  24o;  more,  etc.  Ry.  Co,  v.  Wheeling,  13 
Haight  V.  Proprietor,  etc.,  4  Wash.  Grat.  (Va.)  40. 


§  192.]  DEFENSES  BY  ANSWER.  261 

answer  under  oath,  but  for  that  purpose  it  is  necessary  that 
they  be  named  as  defendants  in  the  bill."  ^ 

In  Brumley  v.  Westchester'^  the  court  denied  a  motion  to  com- 
pel officers  of  a  corporation  to  make  oath  to  the  answer  filed 
to  a  bill  against  a  corporation  generally  where  the  corpora- 
tion put  in  an  answer  under  its  corporate  seal.  The  co  irt  say: 
"  It  does  not  appear  that  this  is  a  bill  merely  for  a  discovery 
of  writings,  .  .  .  and,  if  it  was,  the  case  would  not  war- 
rant the  motion  that  the  defendants  named  should  swear  to  the 
very  answer  put  in  on  behalf  of  the  corporation.  The  principle 
is  established  by  that  and  by  other  cases,  .  .  .  that  the 
court  will  call  upon  individual  members  of  a  corporation  to 
answer  not  only  with  the  rest  under  the  common  seal,  but  in- 
dividually, upon  oath;"  but  in  such  cases  holding  that  thede- 
fendants,  whose  discover}'^  under  oath  is  sought,  must  be  named 
in  the  bill  as  defendants.  If  the  corporation  defendant  desires 
to  obtain  a  dissolution  of  an  injunction,  it  may  be  necessary  to 
have  the  answer  to  the  bill  verified,  and  in  such  case  it  may 
be  done  by  the  oath  of  some  of  the  corporators,  or  officers  of 
the  corporation  who  are  able  to  make  oath  as  to  the  facts  in 
the  bill,  and  in  such  case  several  affidavits  may  be  attached, 
each  affiant  testifying  to  the  facts  alleged  in  the  answer  which 
are  personally  known  to  him.  The  reason  of  this  rule  is  that 
an  injunction  will  not  be  dissolved  on  bill  and  answer  unless 
the  answer  is  sworn  to.' 

§  192.  The  waiver  of  the  sworn  answer. —  A  sworn  answer 
may  be  waived  by  the  complainant,  but  if  it  is  not  expressly 

1  Brumly  v.  Westchester,  etc.  Co.,  ing  to  show  that  it  is  unauthorized, 

1  Johns.  Ch.  366;  Buford  v.  Rucker,  it    will    be    sufficient.     Larrison   v. 

4  J.  J.  Marsh.  (Ky.)  551.     In  Schilcer  Peoria,  etc.  Ry.  Co.,  77  IlL  11. 

V.  Brock,  124  Ala.  636,  27  So.  473,  a  2  i  Johns.  Ch.  365. 

bill  was  verified  using  the  following  'Fulton  Bank  v.  New  York,  etc. 

language:    "That   the   matters  and  Co.,  1  Paige  (N.  Y.),  311,  1  Barb.  Ch. 

things  alleged  in  the  foregoing  bill  Pr.  156.     In  Bronson  v.  La  Crosse  Ry. 

as  facts  are  true,  and  tliose  alleged  Co.,  2  Wall.  (U.  S.)283,  302,  twostock- 

upon  information  and  belief  he  be-  holders  of  the  corporation,  not  hav- 

lieves  to  be  true."    This  verification  ing  been  made  parties  to  the  bill, 

was  held  to  be  insufficient.     The  an-  were  permitted  by  leave  of  the  court 

swer  of  a  municipal  corporation  to  a  to  appear  and  put  in  answers  in  the 

bill  in  chancery  need  not  be  signed  name  of  the  company,  and  the  ques- 

by  an  officer   thereof.     Where  the  tion  was  as  to  what  effect  should  be 

name  of  the  corporation  is  written  given  to  these  answers.  The  supreme 

to  such  an  answer,  and  there  is  uotli-  court  say:  ''That  they  cannot  be  re- 


262 


DEBENSES  BY  ANHWEBi. 


[§  192 


waived  in  the  bill  of  complaint  or  by  stipulation  in  writing,  oi 
by  an  order  of  the  court,  the  defendant  must  swear  to  it;  and 
if  there  is  more  than  one  defendant  and  they  make  a  joint  and 
several  answer,  then  each  one  of  them  must  swear  to  it  or 
make  aflBrmation  to  it.'  The  oath  or  affirmation  may  be  taken 
before  a  notary  public,  a  justice  of  the  peace,  or  any  person 
authorized  to  administer  oaths  within  their  respective  jurisdic- 
tions. If  the  answer  is  to  be  verified  without  the  United  States, 
it  may  be  done  before  a  commissioner  appointed  for  that  pur- 
pose, or  before  a  consular  olficer.- 

The  form  of  the  oath  or  certificate  is  generally  as  given  in 
the  preceding  section.^     Dut  no  fixed  or  absolute  form  can  be 

garded  as  the  answers  of  the  corjx)-  sity,  as  well  as  the  propriety  and 
rate  body  is  manifest,  as  a  corpora-  justice,  of  i)erniitting  the  defense  by 
tion  must  appear  and  answer  to  the  a  .stockholder  in  their  name,  Un- 
bill,  not  under  oath,  but  under  its  doubtodly.  in  the  case  supposed,  it 
common  seal.  And  an  omission  thus  would  be  a  reproach  to  the  law,  and 
to  appear  and  answer  according  to  especially  in  a  court  of  equity,  if  the 
the  rules  and  practice  of  the  court    stockholders   were  remediless.     But 

in  such  a  case,  the  court  in  its  dis- 
cretion will  permit  a  stockholder  to 
become  a  party  defendant,  for  the 
purpose  of  protecting  his  own  inter- 
ests against  unfounded  or  illegal 
claims  against  the  company;  and 
he  will  also  be  permitted  to  appear 
on  behalf  of  other  stockholders  who 
may  desire  to  join  him  in  thedefensa" 

1  In  the  United  States  equity  court 
this  is  regulated  by  rule  of  the  court. 
United  States  Equity  Rule  59  is  as 
follows:  "Every  defendant  may 
swear  to  his  answer  before  any  jus- 
tice or  judge  of  any  court  of  the 
United  States,  or  before  any  com- 
missioner appointed  by  any  circuit 
court  to  take  testimony  or  deposi- 
tions, or  before  any  master  in  chan- 
cery appointed  by  any  circuit  court, 
or  before  any  judge  of  any  court  of 
a  state  or  territory,  or  before  any 
notary  public"  Paige  v.  Broad  foot, 
100  Ala.  610,  13  So.  426;  Patterson  v. 
Scott,  142  111.  138:  Story,  Eq.  PI.,  sees. 
874,  875a;  1  Danl.  Ch.  PL  &  Pr.  734, 735. 

2  U.  S.  Eq.  Rule  59. 

3  Ante,  g  188. 


entitle  the  complainants  to  enter  an 
order  that  the  bill  be  taken  j^ro  con- 
fesso.  A  further  objection  in  the 
practice  of  permitting  a  party  to  ap- 
pear and  answer  in  the  name  of  the 
corporation  is  the  inequality  that 
would  exist  between  the  parties  to 
the  litigation.  The  corporation  not 
being  before  the  court,  it  would  not 
be  bound  by  any  order  or  decree.ren- 
dered  against  it.  nor  by  any  admis- 
sions made  in  the  answer  or  stipula- 
tions that  might  be  entered  into  by 
the  parties  or  their  counsel.  It  is 
thus  apparent,  that  while  the  name 
of  the  corporation  is  thus  used  as  a 
real  party  in  the  litigation  so  far  as 
the  rights  and  interests  of  the  com- 
plainants are  concerued,it  is  an  unreal 
and  fictitious  party  so  far  as  respects 
any  obligation  or  responsibility  on 
the  part  of  the  respondents.  It  is 
insisted,  however,  that  the  directors 
of  this  company  refused  to  appear 
and  defend  the  bill  filed  against 
them,  and  for  the  fraudulent  purpose 
of  sacrilicing  the  interests  of  the 
stockholders;  and,  hence,  the  neces- 


§  193.]  DEFENSES  BY  ANSWER.  263 

Baid  to  be  required;  the  defendant  is  merely  required  to  swear 
or  affirm,  in  an  affidav^it  attached  to  his  answer,  that  he  has 
read  or  heard  read  his  answer  and  knows  the  contents  thereof, 
and  tbat  the  same  is  true  of  his  own  knowledge  except  as  to 
the  matters  therein  stated  to  be  on  his  information  and  belief, 
and  as  to  those  matters  he  believes  it  to  be  true.  If  the  an- 
swer is  the  joint  and  several  answer  of  several  defendants,  the 
certificate  of  the  officer  taking  the  verification  should  show 
that  fact  —  that  they  each  personally  appeared  before  him  and 
each  for  himself  made  oath  that  he  had  read  the  answer  and 
that  the  same  is  true,  as  stated  in  the  form  previously  given. ^ 
Stress  is  laid  upon  these  requirements  because  it  is  a  right  of 
the  complainant  to  have  sworn  discovery  of  the  mind  of  the 
defendant  if  he  seeks  it,  and  he  may  do  so  by  failing  to  waive 
an  answer  under  oatli  in  his  bill.  A  sworn  answer  may,  how- 
ever, be  waived  other  than  by  the  waiver  clause  usually  in- 
serted in  the  bill  of  complaint;  and  where  it  appeared  that  an 
answer  of  several  defendants  was  filed  in  the  case,  and  that 
one  of  them  had  not  sworn  to  it,  but  that  the  complainant  had 
filed  a  replication,  and  proofs  were  taken  and  the  cause  set 
down  for  hearing,  it  was  held  that  the  complainant  had  waived 
a  sworn  answer,'-  and  such  a  waiver  may  no  doubt  be  effected 
by  a  written  stipulation.  In  the  courts  of  the  United  States 
and  in  the  courts  of  the  different  states  of  the  Union  this  is 
regulated  by  rule. 

§  193.  Compelling  an  answer. —  The  answer  of  the  defend- 
ant may  be  used  in  the  cause  as  evidence,  and  in  cases  where 
the  complainant's  case  depends  largely  upon  discovery  which 
is  sought  from  the  defendant  he  may  compel  an  answer  to  his 
interrogatories  upon  oath.  This,  however,  is  largely  regulated 
by  statutes  and  rules  of  the  different  states.  In  the  United 
States  courts,  by  Equity  Rule  18,  after  providing  for  taking  de- 
crees/»ro  covfesso^  the  rule  provides  as  follows : '  "Or  the  plaint- 

^  Ante,  §  188;  Reed  v.  Consequa,  4  Beach,  2  Paige,  307;  Torrent  v.  Rod- 
Wash.  (U.  S.  C.  C.)  335;  Hathaway  gers,  39  Mich.  85. 
V.  Scott,  11  Paige  (N.  Y.),  173,  176;  »U.  S.  Eq.  Ru!e  18.  "It  has  been 
Pincers  v.  Robertson,  24  N.  J.  Eq.  already  mentioned  that  every  plaint- 
348;  Denison  v.  Bassford,  7  Paige,  iff  is  entitled  to  a  discovery  from  the 
370.  defendant  of  the  matters  charged  in 

2  Bailey,    etc.    Co.    v.    Young,    13  the  bill,  provided  they  are  necessarj' 

Blatchf.  (U.  S.)  199;  Fulton  Bank  v.  or  proper  to  ascertain  facts  material 


264  DEFENSES  BY  ANSWER.  [§  194. 

iff,  if  he  requires  any  discovery  or  answer  to  enable  him  to  ob- 
tain a  proper  decree,  shall  be  entitled  to  process  of  attachment 
against  the  defendant  to  compel  an  answer,  and  the  defend- 
ant shall  not,  when  arrested  upon  such  process,  be  discharged 
therefrom,  unless  upon  filing  his  answer,  or  otherwise  comply- 
ing with  such  order  as  the  court  or  a  judge  thereof  may 
direct,  as  to  pleading  to  or  fully  answering  the  bill,  within  a 
period  to  be  fixed  by  the  court  or  judge,  and  undertaking  to 
speed  the  cause."  The  practice  in  compelling  a  defendant  to 
answer  the  bill  of  complaint  in  the  United  States  court  is  no 
doubt  to  proceed  directly  against  the  defendant  as  for  con- 
tempt. An  attachment  may  be  issued  against  him,  and  the 
practice  in  some  of  the  courts  has  gone  so  far  as  to  hold  that 
he  may  be  committed.^ 

§  194.  Amendments. —  In  matters  of  form  or  mistakes  in 
date  as  to  immaterial  matters  the  court  of  equity  is  very  in- 
dulgent in  granting  amendments  to  the  answer;  but  after  a 
replication  has  been  filed,  or  the  case  has  been  set  down  for 
hearing,  no  amendment  will  be  granted  except  b}'-  special  leave 
of  the  court,  and  if  the  answer  be  a  sworn  answer,  no  amend- 
ment that  is  contradictory  to  or  not  in  harmony  with  the  an- 
swer on  file  will  be  allowed.  And  if  it  be  an  unsworn  answer, 
the  court  would  no  doubt  hesitate  to  grant  leave  to  amend  by 
stating  facts  not  in  harmony  with  the  allegations  of  the  an- 
swer sought  to  be  amended.  The  allowance,  however,  of 
amendments  is  largely  within  the  discretion  of  the  court. 

In  the  United  States  court  this  is  regulated  by  rule.^  And 
where  an  answer  was  not  sufficiently  explicit  or  responsive, 
an  amendment  was  required;'  and  where  parties  were  trans- 
posed, an  amendment  was  permitted.*     So  a  mistake  in  the 

to  the  merits  of  his  (the  plaintifTs)  either  by  a  demurrer,  or  by  a  plea,  or 

case,  and  to  enable  him  to  obtain  a  by  a   disclaimer."      Story,   Eq.   PI., 

decree.      The  plaintiff  may  require  sees.  845,  846. 

this  discovery,  either  because  he  can-  1 1  Danl.  Ch.  PI.  &  Pr.  488,  48a     In 

not  prove    the  facts,  or  in  aid  of  the  Matter  of  Vanderbilt,  4  Johns. 

proof,  and  to  avoid  expense.     .     .     .  Ch.  57,  the  practice  was  discussed. 

When,    therefore,    a    defendant    is  Gould  v.  Spencer,  5  Paige,  541. 

called  upon  by  a  bill  to  make  a  dis-  *  U.  S.  Equity  Rule  60. 

covary  of  the  several  charges  con-  '  Feller  v.  Winchester,  3    Greene 

tained  in  the  bill,  he  must  do  so  by  a  (Iowa),  244. 

general  answer  to  those  charges,  un-  *  Buckley  v.  Boutellier,  61  III  29a 

less  he  can  protect  himself  from  it 


§  195.] 


EXCEPTIONS  TO  THE  ANSWER.  265 


title  of  the  answer  may  be  amended;  or  an  omission  in  the 
Jurat;  or  the  omission  of  names  of  the  parties  which  were 
omitted  by  mistake  of  the  solicitor.^  And  where  the  matter 
sought  to  be  introduced  as  an  amendment  happened  since  the 
filing  of  the  bill,  unless  there  is  something  in  the  relation  of 
the  parties  or  the  subject-matter  of  the  suit  which  should  ex- 
clude the  proposed  defense,  the  court  will  not  refuse  to  hear 
it.2  But  where  the  amendment  was  proposed  after  argument 
and  submission  of  the  cause,  which  changed  the  defense  and 
based  the  claim  of  the  defendant  upon  an  entirely  different 
theory,  it  was  held  to  be  improperly  allowed.'  And  where 
the  amendment  proposed  would  render  the  amended  answer 
a  practical  contradiction  of  the  original  answer,  and  a  long 
time  had  intervened  and  the  amendment  introduced  new  issues, 
it  was  denied.* 

§  195.  Exceptions  to  the  answer.— When  an  answer  under 
oath  is  not  waived  by  the  complainant,  and  the  answer  filed  is 
insufficient  to  meet  the  discovery  sought,  or  is  scandalous  or 
impertinent,  the  complainant  may  except  to  the  answer, 
pointing  out  in  his  exceptions  in  what  respect  it  is  insufficient; 
or  if  for  scandal  or  impertinence,  showing  particularly  by  the 
exceptions  in  what  it  consists  and  praying  that  the  scandalous 
and  impertinent  matter  may  be  expunged;  or,  if  the  excep- 

1  McMichael  v.  Brennan,  31  N.  J.  Fed.  375.     And  where  leave  to  file 

Eq.  496;  Brink  v.  Morton,  2  Clarke  an   amended  answer  and   crossbill 

(Iowa),  411.     '*  But  in  the  case  of  an-  was  sought  long  after  the  cause  was 

swers,  and  of  pleas  put  in  upon  oath,  at  issue,  but  a  short  time  before  the 

the  court  will  not,  for  obvious  rea-  time  fixed  for  closing  the  evidence, 

sons,  easily  suffer  an  amendiueut  to  it   was  iield  that  the   matter  was 

be  made.     In  a  small  matter,  how-  within  the  discretion  of  the  court, 

ever,  the  defendant  may  amend;  but  and  that  the  court  might  properly 

not  in  a  material  one,  unless  upon  examine  the  legal  sufficiency  of  the 

evidence  to  the  court  of  surprise,  facts  averred  and  judge  from  the  ev- 

The  most  common  case  of  amending  idence  already  taken  whether  it  was 

an  answer  is    where,  through  inad-  probable  that  the  defendant  could 

vertency,  the    defendant    has    mis-  support  his  new  averment.     Ritchie 

taken  a  fact  or  a    date;  there  the  v.  McMullen,  25  C.  C.  App.  50,  79  Fed. 

court  will  give  leave  to   amend,  to  522. 

prevent  the   defendant  from   being  2  Hall  v.  Home  Bldg.  Co.,  56  N.  J. 

prosecuted  for  perjury.     In  general,  Eq.  304,  38  Atl.  447. 

however,  this  indulgence  is  confined  'Joyce  v.  Growney,   154  Ma  253, 

to  cases  of  mere  mistake  or  surprise  55  S.  W.  466. 

in  the  answer."    Story,  Eq.  PL,  sec.  *  Chattanooga  v.  Livingston  (Tenn. 

896;    Schultz   v.   Insurance    Co.,    77  Ck,  1900),  59  S.  W.  470. 


266 


EXCEPTIONS  TO  THE  ANSWER.  [§  196. 


tions  are  that  the  answer  is  insufficient  in  that  it  fails  to  fully 
answer  the  allegations  of  the  bill,  that  a  further  and  sullicient 
answer  be  filed.  The  complainant  can  except  to  the  answer 
for  two  reasons:  First,  for  insufficiency;  second,  for  scandal 
and  impertinence. 

§196.  (I)  Exceptions  for  insufhcicnoy.— The  complain- 
ant's exception  for  insufficiency  of  the  answer  particularly  re- 
lates to  the  discovery  which  is  sought  by  the  bill  of  com- 
plaint. It  can  hardly  be  said  that  exceptions  to  the  answer 
apply  only  to  bills  for  discovery  and  not  to  bills  for  relief, 
where  the  complainant  finds  that  it  is  necessary  that  he  should 
have  the  discovery  in  order  that  he  may  sustain  his  case;  for 
bills  of  relief,  by  reason  of  the  general  prayer  that  the  defend- 
ant shall  "  full,  true,  direct  and  perfect  answer  make  to  all  and 
singular  the  premises  as  fully  as  if  he  had  been  hereto  inter- 
rogiited,"  etc.,  become  bills  of  discovery  to  the  extent  that  the 
defendant  is  required  to  answer  fully,  directly  and  completely 
all  of  the  material  allegations  in  the  bill,  so  that  in  this  par- 
ticular one  cannot  distinguish  the  bill  of  relief  from  the  bill  of 
discovery,  and  the  rule  relating  to  exceptions  to  the  answer 
must  apply  as  fully  in  the  one  case  as  in  the  other.' 

In  Ames  v.  King  -  it  was  held  that  the  prayer  for  answer  in 
the  bill  of  complaint  is  a  good  general  interrogatory  and  re- 
quires the  answer  of  the  defendant  to  the  allegations  of  the 
bill.^' 

1  Story.  Eq.  PI.,  sec.  38.     "  If  the  de-  2  9  Allen  (Mass.).  258;  Partridge  ▼. 

fendant  fully  answers  to  the  matters  Haycraft,  11  Ves.  574;  Mitf.  Ch.  PI. 

of  the  bill,  with  their  attendant  cir-  50,  51. 

cumstances,  or  fully  denies  them  in  3  in    M.    E.   Church  v.   Jaques,   1 

the  proper  manner  on  oath,  the  ob-  Johns.    Ch.  (N.  Y.)  65,  75,  the  chan- 

jectof  the  special  interrogatories  is  cellor  says:  "The  bill  contains  the 

completely  accomplished."    Stafford  general  interrogatory,  'that  the  de- 

V.  Brown,  4  Paige  (N.  Y.),  88.     It  has  fendants  may  full  answer  make  to 

been  held  that  "The  office  of  an  ex-  all  and  .singular  the  premises,  fully 

ception  to  an  answer  is  to  raise  the  and  particularly,  as  though  the  same 

question  whether  the  averments  and  were  repeated,  and  they  specially  in- 

denials  thereof  are  sufficiently  re-  terrogated,  paragraph  by  paragraph, 

sponsive   to  the  allegations  of   the  with  sums,  dates,  and  all  attending 

bill;  and  it  cannot  be  treated  as  rais-  circumstances,  and  incidental  trans- 

ing  the  question  of  the  sufficiency  of  actions.'      The    question,    then,    is, 

the   answer    as    a    defense    on   the  whether  this  be  not  sufficient  to  call 

merits."     Walker  v.  Jack,  31  U.  S.  C.  for  a  full  and  frank  disclosure  of  the 

C.  A.  462,  88  Fed.  576.  whole  subject-matter  of    the    bill; 


§  197.] 


EXCEPTIONS  TO  THE  ANSWER. 


267 


§  197.  Exceptions  only  allowed  when  answer  under  oath 
is  required. —  As  we  shall  see,  the  answer  of  the  defendant 
cannot  be  used  as  evidence  or  as  a  deposition  in  the  case, 
unless  an  answer  under  oath  has  been  required  by  the  com- 

and   I  apprehend  the  rule  on  this    ery  are  matters  of  record ;  also  that 

discovery  will  never  be  compelled 
merely  for  the  purpose  of  saving  the 
complainants  the  labor  of  collecting 
and  presenting  their  proof.  The 
cases  cited  in  support  of  this  prop- 
osition are  cases  where  the  holding 
was  with  reference  to  bills  for  dis- 
covery merely,  or  where  the  ques- 
tion was  considered  as  it  arises  on 
such  bills.  For  illustration,  in  Ex 
parte  Boyd,  105  U.  S.  656.  the  court 


subject  to  be,  that  it  is  sufficient  to 
make  this  general  requisition  on  the 
defendant,  to  answer  the  contents  of 
the  bill,  and  that  the  interrogating 
part  of  the  bill,  by  a  repetition  of 
the  several  matters,  is  not  nece  sary. 
The  defendant  is  bound  to  deny  or 
admit  all  the  facts  stated  in  the 
bill,  with  all  their  material  circum- 
stances, without  special  interroga- 
tories for  that  pur[)ose.     They  are 


only  useful  to  probe  more  effectu-  said  that  it  had  nothing  to  do  with 
ally  the  conscience  of  the  party  and  any  question  but  that  of  discovery, 
to  prevent  evasion  or  omission  as  to  Also  in  Ingilby  v.  Shafto,  83  Beav. 
circumstances  which  may  be  deemed  ,'51,  the  bill  was  for  discovery  merely 
important:  but  it  is  no  excuse  for  in  aid  of  the  defense  of  actions  of 
the  defendant,  in  avoiding  to  answer  ejectment,  and  the  court  held  that 
fully  to  the  subject-matter  of  the  a  complainant  in  such  a  case  was 
bill,  that  there  were  no  special  inter-  not  justified  in  coming  into  equity 
rogatories  applicable  to  the  case. 
Plain  sense  and  a  good  conscience 
will,  without  any  difficulty,  in  most 
cases,  teach  a  defendant  how  far  it 
is  requisite  to  answer  to  the  contents 
or  the  bill,  and  to  meet  the  gravamen 
alleged;  and  it  is  certainly  desirable 
to  avoid,  if  possible,  the  expense  and 


for  the  purpose  merely  of  getting 
the  defendant  to  admit  documents, 
to  save  him  the  trouble  of  proving 
them.  Tlie  court  further  said  that 
there  was  a  distinction  between  a 
bill  for  discovery  merely  and  a  bill 
asking  for  relief.  Discovery  is  sought 
in   both   cases.     In  the   latter,  it  is 


prolixity  of  repeating  in  the  same    sought  with   reference  to  the  case 


bill  every  material  fact.  It  is  well 
understood  that,  if  defendant  be 
specially  interrogated,  it  can  only  be 
to  the  facts  alleged  and  charged  in 
the  bill.  The  one  cannot  be  more 
extensive  than  the  other."  Mitf.  44; 
Cooper's  PL  11,  12. 

In  McClosky  v.  Barr,  40  Fed.  559, 
the  court  say:  "The  first  proposi- 
tion urged  for  the  defendant  is  that 
exceptions  for  insufficiency  are  con- 
fined to  cases  where  the  complain- 
ants are  compelled  to  rely  upon  the 
defendants  to  prove  their  case,  and 
that  all  the  matters  concerning 
■which  the  complainants  ask  discov- 


stated  and  the  relief  prayed  by  the 
bill,  and  the  complainant  may, 
within  certain  limits,  call  upon  the 
defendant  to  state  how,  and  on  what 
ground,  he  can  oppose  the  relief 
asked;  because  in  such  a  suit  the 
complainant  may  disprove  the  whole 
of  it.  But  the  court  further  said 
that,  when  the  discovery  is  asked  in 
aid  of  an  action  at  law,  all  that  the 
complainant  can  ask  is  for  the  dis- 
covery of  facts  and  documents  in 
the  defendant's  possession,  knowl- 
edge of  which  will  assist  complain- 
ant in  proving  his  own  title  in  the 
action.    Further   on,  the  court  say 


268 


EXCEPTIONS   TO  THE  ANSWER. 


[§  197. 


plainant,  except  so  far  as  its  admissions  are  material.  If  the 
bill  of  complaiivt  waives  an  answer  under  oath,  the  defendant 
cannot  add  to  the  importance  of  his  answer  by  swearing  to  it; 
and  it  would  have  no  more  weight  or  dignity  because  of  his 
voluntarily  adding  a  jurat.  But  when  the  answer  is  required 
to  be  under  oath,  it  may  be  used  as  evidence  in  the  case;  and 
so  it  becomes  more  important  by  way  of  discovering  the  mind 
of  the  defendant  as  to  the  allegations  in  the  bill  of  complaint. 
Therefore,  if  the  answer  does  not  fully  meet  the  allegations  of 
the  complaint,  the  complainant  has  the  right  to  require  a  full 
and  complete  answer  to  these  allegations,  and  he  can  only  do 
so  by  filing  exceptions  to  the  answer  which  he  claims  is  defi- 
cient, and  showing  the  court  in  what  respect  it  is  deficient, 
praying  for  an  order  that  the  defendant  be  required  to  file  a 
complete  and  sufficient  answer.' 

The  complainant  by  requiring  an  answer  under  oath  puts 


that  in  bills  for  relief  the  complain- 
ant may  compel  the  defendant  to 
answer  what  defense  he  makes  to 
the  case  and  on  what  grounds;  and 
that  is  so  for  the  reason  that  the 
court  requires  the  case  of  each  party 
to  the  suit  to  be  pleaded,  in  order 
that  neither  may  be  taken  by  sur- 
prisa"  Pearson  v.  Treadweli.  179 
Mass.  463.  61  N.  E.  44;  Sandusky  v. 
Faris,  49  W.  Va.  150,  3>^  S.  E.  563. 

1  Post,  t^  206:  McCormick  v.  Cham- 
berlin,  11  Paige  (N.  Y.),  543.  In  Car- 
penter V.  Benson,  4  Sandf.  (N.  Y.) 
496,  the  vice-chanllceor,  in  discuss- 
ing a  motion  made  for  the  purpose 
of  compelling  defendant  to  produce 
and  deliver  certain  documents  in  a 
case  where  a  bill  was  filed  for  spe- 
cific performance,  and  an  answer 
under  oath  waived,  said:  "The  pro- 
duction of  documents  by  the  de- 
fendant, on  motion,  for  the  purpose 
of  aiding  the  complainant  in  sustain- 
ing his  suit,  is  in  the  nature  of  an 
exception  to  the  defendant's  answer. 
It  rests  upon  the  principle  that  the 
complainant  in  equity  has  a  right  to 
examine  his  adversary  on  oath  as  to 


the  material  facts  constituting  his 
case  made  by  his  bill;  and  the  mo- 
tion for  the  production  of  docu- 
ments, coming  within  that  descrip- 
tion which  the  defendant  admits  to 
be  in  his  possession,  is  a  substitute 
for  the  statement  of  such  documents 
at  large  in  the  answer.  Wigram's 
Points  on  the  Law  of  Discovery,  13 
to  15.  Where  an  exception  to  the 
answer  would  not  be  sustained,  if 
the  bill  had  called  for  a  full  state- 
ment of  the  document  in  the  answer, 
a  motion  for  its  production  will  not 
be  granted,  although  tiie  answer  ad- 
mits its  custody.  In  tliis  case  the 
defendant's  answer  on  oath  is  waived. 
The  complainant,  instead  of  seeking 
his  examination,  disclaims  the  right- 
No  exception  can  be  taken  to  the 
answer  for  insufficiency."  Burras  v. 
Looker,  4  Paige.  227.  By  the  Revised 
Statutes  of  Illinois,  ch.  22,  sec.  20,  it  is 
provided  that  an  answer  under  oath, 
other  than  a  bill  for  discovery,  may 
be  waived;  and  section  21  requires 
every  answer  to  be  verified,  except 
where  otherwise  provided  in  the  pre- 
ceding section.     Under  this  statute 


§  197.] 


EXCEPTIONS   TO   THE   ANSWER. 


269 


the  defendant  u])on  examination  as  to  the  allegations  in  the 
bill,  and  the  answer  is,  therefore,  somewhat  in  the  nature  of  a 
deposition.  And  if  he  should  fail  to  fully  and  completely  an- 
swer the  questions  of  fact  submitted  in  the  allegations  of  the 
bill,  the  complainant  may  except  to  his  answer;  but  if  the 
answer  under  oath  is  waived  by  the  complainant,  then  the 
answer  stands  simply  as  an  ordinary  pleading.'  Cut  where  the 
defendant  is  a  corporation,  because  of  the  fact  that  a  sworn 
answer  cannot  be  required,  even  if  not  waived  by  the  bill,  the 
defendant  is  required  to  answer  fully  every  material  allega- 
tion, and  if  such  an  answer  is  not  made,  exceptions  thereto 
will  lie.2 

"Neither  can  the  answer  of  an  infant  be  excepted  to  for  in- 
sufficiency," for  the  reason  that  infants  are  not  compelled  to 
answer   upon  their  oaths,  even  if   an  answer  on  oath  is   not 


it  was  held  in  Farrand  v.  Long.  184 
in.  100,  36  N.  E.  313,  tliat  a  complain- 
ant in  partition  is  entitled  to  except 
to  aiKswers  for  insufficiency,  though 
Buch  answers  were  not  under  oath. 

1  In  Brown  v.  Mortgage  Co.,  110  HI. 
235,  241,  it  is  said:  "Where  the 
answer  is  not  under  oath  exceptions 
will  not  lie  becausesuch  answer  is  not 
evidence  for  the  party  making  it." 
An  unverified  answer  not  subject 
to  objections.  Supervisors  v.  Rail- 
way Co.,  'il  111.  366;  Arnold  v.  Slaugh- 
ter, 36  W.  Va.  589;  Goodwin  v. 
Bishop,  145  111.  421,  34  N.  E.  47;  Smith 
V.  McDowell,  148  111.  51.  35  N.  E.  141. 

2  In  National,  etc.  Co.  v.  Inter- 
changeable Brake  Beam  Co.,  83  Fed. 
:J6,  28,  the  court  said:  "Corporations 
answer  under  the  sanction  and  so- 
lemnity of  their  seals  only;  but, 
whether  defendants  answer  under 
oath  or  under  corporate  seals,  when 
oaths  are  waived  they  are  required 
to  answer  fully  on  every  material 
issua  The  waiver  of  an  oath  in  any 
case  is  made  by  the  complainant  for 
the  purpose  of  d'^priving  the  defend- 
ant of  the  advantage  of  his  answer 
as  evidence  in  his  favor.     If  no  such 


waiver  is  made,  a  sworn  answer  is 
taken  as  evidence  in  favor  of  the  de- 
fendant, so  forceful  as  to  require 
two  witnesses  or  one  witness  and 
corroborating  circumstances,  to  over- 
come it.  From  this  it  appears  that 
the  sole  purpose  of  a  waiver  of  an 
oath  to  an  answer  is  to  afifect  tlie 
evidential  character  and  value  of  the 
answer.  It  has  nothing  to  do  with 
the  answer  as  a  pleading,  and  the  rule 
prevails  that  the  defendant  must 
answer  fairly  and  fully  to  each  and 
every  material  fact  alleged  in  the 
bill.  This  fair  and  full  answer 
should  serve  the  purpose  of  eliminat- 
ing many  undisputed  facts  from 
the  case.  If  facts  alleged  by  the 
complainant  are  admitted  by  the  de- 
fendant in  his  answer,  the  necessity 
for  consumption  of  time  and  ex- 
penditure of  money  in  making  proof 
thereof  does  not  exist,  and  the  court's 
attention  is  drawn  to  the  debatable 
issues  only.  The  power  of  the  court 
to  require  such  an  answer  ought  not 
to  be  abridged  at  all;  and  therefore, 
if  the  complainant,  for  the  purpose 
of  preventing  the  defendant  from 
making  its  answer  equal  in  eviden- 


27t)  EXCEPTIONS   TO  THE  ANSWER.  [§  198- 

waived;'  nor  is  the  attorney-general,  or  an  officer  of  the  com- 
monwealth, when  answering  in  his  official  capacity.  But  the 
rule  is  diflerent  in  the  case  of  lunatics  or  idiots;  the  answer 
for  them  by  their  guardians  or  committee  may  be  excepted  to.' 
§  198.  When  there  is  an  answer  to  a  part  of  a  bill,  a 
plea  to  a  part,  or  a  demurrer  to  a  part.— Exceptions  can- 
not be  taken  to  a  plea  except  by  permission  of  the  court,  but 
where  there  is  an  answer  to  a  portion  of  the  bill,  a  plea  to  a 
portion,  and  the  answer  is  insufficient,  the  complainant  may 
except  to  the  answer.  And  if  a  plea  is  ordered  to  stand  for  an 
answer,  it  is  presumed  to  be  sufficient  and  not  subject  to  ex- 
ceptions, unless  permission  is  obtained  from  the  court;  but  if 
the  plea  is  ordered  to  stand  for  an  answer  with  liberty  to  ex- 
cept, or  is  accompanied  by  an  answer  which  will  enable  the 
complainant  to  except  without  such  special  leave,  then  upon 
reference  it  will  be  ascertained  whether  the  bill  is  fully  an- 
swered, taking  the  plea  as  part  of  the  answer,  unless  the  order 
permitting  the  plea  to  stand  as  an  answer  declares  as  to  what 
part  of  the  bill  it  is  to  be  considered  a  good  defense.^  And 
where  there  is  an  answer  to  a  part  of  a  bill  and  a  plea  to  a 
part,  or  an  answer  to  a  part  and  a  demurrer  to  a  piirt  of  the 
bill  and  the  partial  plea  or  demurrer  is  overruled,  defendant 
need  not  answer  further,  because  there  is  an  answer  already 
on  file  to  the  bill,  and  the  complainant,  if  he  desires  a  further 
answer,  must  except  to  the  partial  answer.  And  if  there  is  a 
demurrer  to  a  portion  of  the  bill,  and  an  answer  to  the  remain- 
ing part,  the  complainant  can  except  to  the  answer  to  that 
part  of  the  bill  which  is  not  covered  by  the  demurrer.* 

tial  strength  to  two  witnesses,  sees  tions  to  it,  especially  when  the  an- 

fit  to  waive  the  oath  to  the  answer,  swer    is    an   express  denial    of  the 

the   riglit  to  exceptions  for   insuf-  charges  made. 

ficiency   must  still   exist."     Game-  i  Leggett  v.  Sellon,  3  Paige  (N.  Y.), 
well  Fire-Alarm  Tel.  Co.  v.  Mayor,  84. 
etc.,  31  Fed.  313;  Reed  v.   Insurance  2  Barb.  Ch.  Pr.  177. 
Co.  36  N.  J.  Eq.  393;  Colgate  v.  Com-  ^  Ante,  §  179  and  notes;  Orciitt  v. 
pagnie  Francaise,  33  Fed.  83;  Whitte-  Orms,  3  Paige  (N.  Y.),  459,  461;  Lea- 
more  V.  Patten.  81  Fed.  537.     In  Mc-  craft    v.    Demprey,    4    Paige,    134; 
Creery  V.  Circuit  Judge,  93  Mich.  463,  Kirby  v.  Taylor,  6  Johns.   Ch.  342; 
468,  it  was  held  that  the  voluntary  Goodrich  v.  Pendleton,  3  Johns.  Ch. 
answer  of  a  corporation  does  not  en-  384. 
title  the  complainant  to  file  excep-  *  1  Barb.  Ch.  Pr.  177. 


§  199.]  EXCEPTIONS    TO   THE   ANSWER.  271 

§  199.   Exceptions  to  an  answer  to  an  amended  bill.— 

By  failing  to  except  to  the  answer  within  the  time  allowed  by 
the  rules  and  practice  of  the  court,  the  plaintiff  waives  the 
privilege  and  the  answer  will  be  deemed  to  be  sufficient.^ 
And  so  it  follows  that  where  an  amended  bill  is  filed  after  the 
original  bill  has  been  answered  by  the  defendant  and  the  de- 
fendant answers  the  amended  bill,  the  complainant  cannot  file 
exceptions  to  the  answer  to  the  amended  bill  except  to  those 
portions  which  were  not  contained  in  the  original  answer;  that 
is,  he  can  only  except  as  to  the  new  matter  of  defense  called 
out  by  reason  of  the  amended  bill.-  It  seems,  however,  that 
there  is  a  partial  exception  to  this  rule.  Where  the  amended 
bill  states  an  entirely  new  case,  or  where  the  answer  to  the 
amended  bill  contains  similar  allegations  of  facts  to  those  con- 
tained in  the  first  answer  not  strictly  called  for  by  the  amend- 
ment, but  alleges  them  with  different  circumstances  and  to 
meet  additional  circumstances  contained  in  the  amended  bill, 
in  such  cases  exceptions  will  lie. 

The  exceptions  to  an  answer  to  an  amended  bill  should  be 
so  entitled  as  to  show  that  they  are  exceptions  taken  by  the 
complainant  to  the  answer  of  the  defendant  to  the  amended 
bill  of  complaint.  If  the  original  bill  is  so  amended  that  a 
further  answer  will  answer  the  amendments  as  well  as  the  ex- 
ceptions, the  complainant  may  file  new  exceptions  within  the 
time  allowed. 

1  U.  S.  Eq.  Rule  61.  "After an  an-  the  defendant  has  not  answered 
swer  is  tiled  ou  any  rule-day,  the  matters  which  were  contained  in 
plaintiff  shall  be  allowed  until  the  the  original  bill,  is  that,  by  amend- 
next  succeeding  rule-day  to  file  in  ing  his  bill,  the  plaintiff  has  ad- 
the  clerk's  office  exceptions  thereto  mitted  the  answer  to  it  to  be  suflB- 
for  insufficiency,  and  no  longer,  un-  cient." 

less  a  longer  time  shall  be  allowed  2  Iq  Bennington  Iron  Co.  v.  Camp- 
for  the  purpose,  upon  cause  shown  bell,  2  Paige  (N.  Y.),  160.  it  was  held 
to  the  court,  or  a  judge  thereof;  and,  that  it  was  not  proper  to  except  for 
if  no  exception  shall  be  filed  thereto  insufficiency  to  portions  of  the  fur- 
within  that  period,  the  answer  shall  ther  answer  which  are  founded  upon 
be  deemed  and  taken  to  be  suffi-  the  matters  of  the  original  bill,  and 
cient."  1  Danl.  Ch.  PI.  &  Pr.  762.  if  the  exceptions  to  the  amended  an- 
"The  reason  of  the  rule  that  a  swerclearlyrelate  to  the  original  bill 
plaintiff,  if  he  does  not  except  to  the  and  not  to  the  amendments  thereto, 
answer  to  the  original  bill,  cannot  on  motion  they  may  be  stricken  from 
afterwards  except  to  the  answer  to  the  files  for  irregularity. 
an  amended  bill,  on  tlie  ground  that 


272  EXCEPTIONS  TO  THE  ANSWER.  [§§  200-202. 

§  200.  Failing  to  file  exceptions  — Effect  of.— The  com- 
plainant, as  we  have  seen,  is  entitled  to  a  full,  true,  direct  and 
perfect  answer  to  each  and  every  material  allegation  in  his 
bill  of  complaint,  and  the  only  manner  in  which  he  can  en- 
force this  privilege  is  by  excepting  to  the  answer  when  it  in 
this  particular  fails,  or  contains  irrelevant  and  impertinent 
matter.  If  he  does  not  except  to  the  answer,  he  waives  the 
privilege  and  it  stands  as  a  sufficient  answer,  and  he  cannot 
object  to  it  at  the  hearing  for  the  reason  that  it  is  insufficient 
or  contains  irrelevant  matter.  The  object  of  filing  exceptions 
to  the  answer  does  not  alone  rest  in  the  fact  that  he  is  thus 
able  to  obtain  the  discovery  sought,  but  because  by  this  course 
he  may  be  able  to  obtain  a  full  and  direct  answer  admitting 
sufficient  allegations  in  the  bill  to  entitle  him  to  a  decree  and 
thus  warrant  him  in  noticing  his  case  for  hearing  upon  bill 
and  answer,  for  on  the  coming  in  of  the  answer  the  complain- 
ant may,  if  he  is  willing  to  concede  the  facts  alleged  in  the 
answer  to  be  true,  notice  the  case  for  hearing  without  filing  a 
replication,  and  this  proceeding  would  be  in  the  nature  of  a 
demurrer  to  the  answer,  the  complainant  contending  that,  ad- 
mitting: all  the  facts  to  be  true  that  are  alleged  in  the  answer, 
he  is  entitled  to  the  decree  of  the  court  as  prayed  in  his  bill  of 
complaint.^ 

§201.  A  demurrer  to  an  answer  unknown. —  A  demurrer 
to  an  answer  is  unknown  in  chancery  practice.  If  the  plaint- 
iff is  desirous  of  taking  advantage  of  the  fact  that  the  answer 
raises  no  defense  to  the  bill  of  complaint,  as  has  been  said  in 
the  preceding  section,  he  may  notice  or  set  the  case  down  for 
hearing  on  bill  and  answer,  and  at  the  hearing  all  the  allega- 
tions of  the  answer  that  are  responsive  will  be  taken  as  true. 
And  where  a  cause  was  upon  a  bill  and  exhibits,  and  the  an- 
swer without  a  replication  thereto,  it  was  held  that  everything 
in  the  answer  must  be  taken  as  true.'^ 

§  202.  (2)  Exceptions  for  scandal  and  impertinence. — 
Scandal  and  impertinence  have  already  been  defined.'     The 

1  Sandusky  v.  Faris,  49  W.  Va.  150,  to  an  answer  in  equity,  and  that  the 

38  S.  E.  5G3.  only  way  the  sufficiency  of  an  an- 

2Copeland  v.  McCue,  5  W.  Va.  264.  swer  on  its  merits  as  a  defense  can 

In  Walker  v.  Jack,  31  U.  S.  C.  C.  A.  be  tested  is  by  setting  the  case  for 

462,  88   Fed.  576,   it   was   held  that  hearing  on  bill  and  answer, 
there  is  no  such  thing  as  a  demurrer        ^  Ante,  g  4L 


§  202.]  EXCEPTIONS   TO   THE   ANSWEB.  273 

same  rules  obtaining  in  determining  whether  a  bill  of  com- 
plaint is  scandalous  or  impertinent  apply  to  answers.  If  the 
answer  contains  scandalous  or  impertinent  matter,  i.  e.^  state- 
ments that  are  unbecoming  the  dignity  of  the  court  to  hear  or 
are  contrary  to  good  manners,  or  which  charges  some  person 
with  a  crime  not  necessary  to  be  shown  in  the  cause,  or  any 
unnecessary  allegation  bearing  cruelly  upon  the  moral  char- 
acter of  an  individual,  it  is  scandalous;  and  if  it  contains  mat- 
ters of  fact  which  are  altogether  unnecessary  and  totally  im- 
material to  the  matter  in  question,  it  is  impertinent.  And  so 
when  the  answer  in  any  of  its  parts  contains  statements  or 
allegations  that  are  scandalous  and  impertinent,  the  plaintiff 
may  except  to  them  and  have  them  expunged  from  the  answer. 
But  where  it  does  not  appear  that  the  matters  excepted  to  are 
80  irrelevant  to  the  allegations  in  the  plaintiff's  bill  as  to  be 
unworthy  of  the  consideration  of  the  court  as  a  defense,  it  has 
been  held  that  thoy  are  not  subject  to  exceptions.' 

Where  an  answer  contained  matter  which  was  immaterial 
as  a  defense  and  in  its  nature  scandalous,  but  was  introduced 
to  meet  charges  of  bad  faith  made  in  the  bill,  it  was  held  that 
it  would  not  be  suppressed  on  exceptions.^  But  where  an 
answer  to  a  bill  filed  by  a  railroad  company  to  enforce  specific 
performance  of  a  traflBc  contract  between  it  and  the  defendant 
railroad  alleged  that  the  litigation  was  instituted  by  the  plaint- 
iffs in  an  unauthorized  manner  and  that  they  were  liable  for 
damages  for  disturbing  the  defendant's  quiet  and  peaceful  pos- 
session of  propert}'-,  it  was  held  to  be  subject  to  exceptions  for 
impertinence.''  And  allegations  in  the  answer  that  the  plaint- 
iff brought  the  suit  in  a  state  distant  from  defendant's  resi- 
dence for  the  purpose  of  harassing  and  annoying  him  were  held 
to  be  impertinent.*  If  exceptions  for  insufficiency  are  filed  to 
the  answer,  it  would  be  a  waiver  of  exceptions  for  scandal  and 
impertinence.^   Exceptions  for  scandal  and  impertinence  in  no 

1  Haberman  V.  Kaufer,  60  N.  J.  Eq.  »  Reed  v.  Cumberland,  etc.  Ins. 
271.  47  Atl.  48.  Co.,  36  N.  J.  Eq.  393;  Utica,  etc.  Ins. 

2  Mercantile,  etc.  Co.  v.  Mo.  etc.  Ry.  Co.  v.  Lynch,  3  Paige,  210;  Johnson 
Co.,  84  Fed.  379.  v.    Tucker,    2  Tenn.    Ch.    244.       In 

3  Northern,  etc.  Ry.  Co.  v.  Wal-  Cleaves  v.  Morrow,  2  Tenn.  Ch.  592, 
worth,  9  Dist.  Pa.  R.  611,  14  York  the  court  say:  "The  rules  which 
Leg.  Rec.  39.  regulate     exceptions    to     chancery 

4  Whitteniore  v.  Patten,  84  Fed.  51.  pleadings  are  intended  to  secure  full 

18 


274  EXCEPTIONS  TO  THE  ANSWER.  [§  203. 

way  depend  upon  the  answer  being  a  sworn  answer;  any  an- 
swer containinf^  scandalous  or  impertinent  matter  is  subject 
to  exceptions,  and  if  found  to  contain  such  matter  the  court 
will  expunge  it.' 

§  203.  Excepting  to  an  answer  accompanying  a  plea  allows 
tlie  plea.— It  is  a  general  rule  in  pleading  that  pleading 
issuably,  or  setting  up  a  defense  upon  the  merits  to  any  plead- 
ing, is  a  recognition  of  that  pleading;  and  so  excepting  to  an 
answer  accompanying  a  plea  will  allow  the  sufficiency  of  the 
plea.  It  has  the  same  effect  as  filing  a  replication  to  a  plea; 
it  admits  that  the  plea  is  sufficient  and  traverses  the  material 
facts  alleged  only.  It  is  a  recognition  of  the  sufficiency  of  the 
plea;  therefore  if  a  plaintiff  desires  to  contest  a  plea  as  insuffi- 
cient which  is  accompanied  by  an  answer,  he  should  do  so  be- 
fore excepting  to  the  answer.  In  such  case  the  plaintiff  should 
notice,  or  set  the  pleading  down  for  hearing,  and  if  upon  the 
hearing  the  plea  should  be  held  as  sufficient  he  may  then  ex- 
cept to  the  answer.2  u  j^  such  cases,  however,  the  plaintiff  is 
not  precluded,  by  the  circumstance  of  the  court  having  held, 
upon  the  argument  of  the  plea,  that  the  charges  in  the  bill  are 
sufficiently  denied  to  exclude  intendment  against  the  pleader, 
from  afterwards  excepting  to  the  sufficiency  of  the  answer,  in 
any  point  in  which  he  may  think  it  defective.'"' 

discovery,  and  to  prevent  the  records  be  an  intolerable  evil."      Chancellor 

of  the  court  from  being  incumbered  Kent  has  said  that  "  the  best  rule 

with  impertinent   matter,  or  made  to  ascertain  whether  the  matter  in 

the  vehicles  of  private  malice.   They  an   answer  is  impertinent  is  to  see 

are  rigidly  enforced  for  the  attain-  whether  the  subject  of  the  allega- 

ment  of  these  ends.     Whenever  the  tion  could  be  put  in  issue,  or  be  given 

object  of  the  draftsman  is  obviously  in  evidence  between  the  parties."  "  If 

to  conceal  by  words  without  knowl-  the  matter  of  an  answer  is  relevant, 

edge,  or  to  ring  in  unnecessary  and  or   can   have  any   influence  in  the 

improper  matter,  these  rules  furnish  decision  of  the  suit,  either  as  to  the 

the  means  of  rectifying  the  evil,  and  subject-matter  of    the  controversy, 

should    be   unhesitatingly    resorted  the  particular  relief  to  be  given,  or 

to.     If,  on  the  other  hand,  no  real  as  to  the  costs,  it  is  not  impertinent." 

benefit  is  to  be  obtained  by  calling  1  Barb.  Ch.  Pr.  202;  Van  Rensselaer 

them  into  play,  a  resort  to  them  is  v.  Brice,  4  Paige  (N.  Y.).  174. 

useless  consumption   of    time,  and  i  Whittemore  v.  Patten,  81  Fed.  51. 

sets  ponderous  machinery  in  motion  2  Story,  Eq.  PI.,  sees.  689,  891. 

to  no  purpose.     While  their  proper  »  1  Danl.  Ch.  PI.  &  Pr.  625;  Bogar- 

use  is  essential  to  the  attainments  of  dus  v.  Trinity  Church,  4  Paige  (N.  Y.), 

the  ends  of  justice,  their  abuse  would  178. 


g  204.]  EXCEPTIONS   TO   THE   ANSWER.  275 

§  204.  Form  of  exceptions. —  The  exceptions  to  an  answer 
must  be  in  writing  and  signed  by  counsel.  They  must  be  prop- 
erly entitled  in  the  court  and  cause,  and  such  reference  made 
to  the  answers  excepted  to  as  to  enable  the  court  and  opposite 
party  to  clearly  understand  the  particular  answers  and  allega- 
tions in  question.  If  several  defendants  have  filed  separate  an- 
swers and  certain  of  these  answers  are  excepted  to,  it  must  appear 
by  the  exceptions  filed  which  answer  is  intended;  and  if  this 
does  not  appear,  the  exceptions  will  be  stricken  from  the  files 
as  irregular.  "  The  exceptions  should  point  out  specifically  the 
parts  of  the  bill,  or  the  interrogatories,  which  are  unanswered, 
by  separate  exceptions  applicable  to  each  part."  ^  And  if  it  is 
claimed  that  the  statement  in  the  answer  does  not  sufficiently 
answer  the  allegations  in  the  bill,  it  should  be  shown  by  a  clear 
and  careful  statement  in  the  exceptions  in  what  particular  the 
statement  of  the  answer  is  insufficient,  and  generally  reference 
to  the  unanswered  allegations  in  the  bill  and  the  deficient 
statement  in  the  answer  sliould  be  made  by  quoting  the  allega- 
tions of  the  bill  and  the  insufficient  statements  in  the  answer, 
or  the  substance  of  them.^  Exceptions  for  insufficiency  may 
be  sustained  in  part  and  overruled  in  part,  but  it  is  otherwise 
when  the  exceptions  are  taken  for  scandal  or  impertinence. 

Where  an  answer  to  a  bill  in  equity  contained  immaterial 
matter  it  was  held  that  a  mere  general  objection  was  not  suf- 
ficient, but  that  exceptions  pointing  out  the  defects  should  be 
filed.'  And  where  the  exceptions  to  the  answer  alleged  only 
in  a  general  way  that  the  defendant  had  not  answered  the 
charges  in  the  bill,  and  that  the  answer  was  vague,  evasive 
and  uncertain,  and  avoided  disclosures  of  fact,  it  was  held  that 
they  were  insufficient.* 

In  Sandusky  v.  Faris  ^  it  was  held  that  the  only  proper  basis 
of  an  exception  to  an  answer  for  insufficiency  is  that  the  alle- 

1 1  Barb.  Ch.  Pr.  181.     And  where  should  state  the  charges  in  the  bill 

the  exceptions  failed   to  state  the  to  which  the  answer  excepted  to  is 

charges  in  the  bill  to  which  the  an-  addressed."  Schultz  v.  Phoenix,  etc. 

swer  was  addressed,  and  the  exact  Ins.  Co.,  77  Fed,  375. 

terms  of  the  answer,  it  was  held  that  ^  Bennett  v.  Pierce,  45  W.  Va.  654, 

they  were  to  be  generally  considered.  31  S.  E.  973. 

Bower,  etc.  Co.  v.  Wells,  etc.  Co.,  43  <  Jackson  v.  Kraft,  186  IlL  623,  5S 

Fed.  391.  N.  E.  298. 

2  "An    exception    to    an    answer  »  49  W.  Va.  150,  38  S.  E.  563. 


2 TO  EXCEPTIONS   TO   TUE   ANSWER.  [§  ^^5' 

gations  of  a  bill  arc  not  suiBciently  answered;  and  an  excep- 
tion which  amounts  to  no  more  than  a  criticism  of  tho  answer, 
without  settin^r  forth  such  allegations  of  the  bill,  and  properly 
charcinf^  that  the  answer  as  to  them  is  insufficient,  is  bad. 

§  205.  Submissions  to  exceptions.—  When  exceptions  to 
the  answer  have  been  filed  and  served  in  accordance  with  tho 
rules  and  practice  of  the  court,  the  defendant  may,  within  a 
specified  time,  generally  fixed  by  rule,  submit  to  the  exceptions 
and  file  an  amended  answer.  If  the  defendant  does  not  admit 
the  exceptions  within  the  time  allowed,  the  complainant  nuiy, 
by  an  order  of  course,  set  them  down  for  hearing  by  the  court, 
or  the  judge  of  the  court,  and  if  he  does  not  do  this  the  excep- 
tions shall  be  deemed  abandoned  and  the  answer  to  be  suf- 
ficient. This  is  the  practice  in  the  United  States  equity  court 
as  provided  by  rule.^  It  was  formerly  the  practice,  and  to 
some  extent  it  still  obtains  in  some  jurisdictions,  that  if  tho 
defendant,  conceiving  his  answer  to  be  sufficient,  or  for  any 
other  reason,  failed  to  submit  to  the  exception,  the  plaintifi",  by 
an  order,  may  have  the  matter  referred  to  a  master  in  chancery 
to  determine  the  question  of  the  sufficiency  of  the  exceptions, 
who,  after  hearing  the  case  upon  the  exceptions,  makes  his  re- 
port to  the  court,  and  if  the  master  sustains  the  exceptions  and 
finds  the  answer  to  be  insufficient,  the  defendant  must  amend 
his  answer  as  to  those  parts  excepted  to;  but  the  defendant  on 
the  coming  in  of  the  master's  report  may  except  to  it  and 
bring  the  matter  before  the  court  and  obtain  its  judgment  as 
to  the  sufficiency  of  the  answer.^ 

1  U.  S.  Equity  Rule  63  provides:  deemed  abandoned,  and  the  answer 

•'Where  exceptions  shall  be  filed  to  shall  be  deemed  sufficient;  provided, 
the  answer  for  insufficiency,  veithin  however,  that  the  court,  or  any  judge 
the  period  prescribed  by  these  rules,  thereof,  may,  for  good  cause  shown, 
if  the  defendant  shall  not  submit  to  enlarge  the  time  for  filing  excep- 
the  same  and  file  an  amended  an-  tions,  or  for  answering  the  same,  in 
swer  on  the  next  succeeding  rule-  his  discretion,  upon  such  terms  as 
day,  the  plaintiff  shall  forthwith  set  he  may  deem  reasonable." 
them  down  for  a  hearing  on  the  next  ■  Story,  Eq.  PI.,  sec.  865.  "  If  a  de- 
succeeding  rule-day  thereafter,  be-  fendant  conceives  his  answer  to  be 
fore  a  judge  of  the  court,  and  shall  sufficient,  or  if,  for  any  other  reason, 
enter,  as  of  course,  in  the  order-book  he  does  not  submit  to  answer  the 
an  order  for  that  purpose:  and  if  he  matter  contained  in  the  exceptions, 
shall  not  so  set  down  the  same  for  one  of  the  masters  of  the  court  is 
a  hearing  the  exceptions  shall   be  directed  to  look  into  the  bill,  the  an- 


§  206.]  EXCEPTIONS   TO   THE   ANSWER.  277 

§  206.  Compelling  a  better  answer.—  If  the  answer  is  found 
to  be  insuificient,  either  by  the  court  or  the  master's  report, 
and  confirmation  by  the  court,  the  defendant  is  bound  to  put 
in  a  full  and  complete  answer  within  the  time  allowed  him, 
and  if  he  fails  to  do  so  the  bill  may  be  taken  as  confessed  so 
far  as  it  relates  to  the  subjects  found  to  be  insufficiently  an- 
swered. It  may,  however,  be  of  great  importance  to  the  com- 
plainant that  the  defendant  make  a  full  and  complete  answer, 
for  upon  the  answer  the  complainant  may  rely  more  or  less  for 
evidence  in  support  of  his  bill.  In  such  case,  on  motion  of  the 
plaintiff,  the  court  will  compel  the  defendant  to  make  a  further 
and  more  complete  answer,  and  to  that  end  the  plaintiff  may 
at  his  election  have  a  writ  of  attachment  compelling  the  de- 
fendant to  make  a  better  answer;  and  the  defendant  may  be 
taken  into  custody  upon  such  writ  and  will  not  be  discharged 
except  by  an  ordcT  of  the  court,  or  the  judge  thereof,  upon  his 
putting  in  such  answer  and  complying  with  such  other  terms 
as  the  court  or  judge  may  direct. 

In  the  United  States  court  this  is  regulated  by  rule.^  It  is 
also  provided  in  this  court  that  "  if  upon  the  argument  the 
plaintiff's  exceptions  to  the  answer  shall  be  overruled,  or  the 
answer  shall  be  adjudged  insufficient,  the  prevailing  partv 
shall  be  entitled  to  all  the  costs  occasioned  thereby,  unless 
otherwise  directed  by  the  court  or  the  judge  thereof  at  the 
hearing  upon   the  exceptions."  ^    In  some  of  the  states  the 

swer  and  the  exceptions,  and  to  cer-  the  next  succeeding  rule-day;  other- 
tify  whether  the  answer  is  sufficient  wise  the  plaintiff  shall,  as  of  course, 
in  the  points  excepted  to  or  not.  If  be  entitled  to  take  the  bill,  so  far  as 
the  master  reports  the  answer  in-  the  matter  of  such  exceptions  is  con- 
sufficient  in  any  of  the  points  ex-  rerned,  as  confessed,  or,  at  his  elec- 
cepted  to,  the  defendant  must  an-  tion,  he  may  have  a  writ  of  attach- 
swer  again  to  those  parts  of  the  bill  ment  to  compel  the  defendant  to 
in  which  the  master  conceives  the  make  a  better  answer  to  the  matter 
answer  to  be  insufficient;  unless  by  of  the  exceptions:  and  the  defend- 
excepting  to  the  master's  report  the  ant,  when  he  is  in  custody  upon  such 
defendant  brings  the  matter  before  writ,  shall  not  be  discharged  there- 
the  court,  and  there  obtains  a  differ-  from  but  by  an  order  of  the  court, 
ent  judgment."  Coop.  Eq.  PI.  319,  or  of  a  judge  thereof,  upon  his  put- 
320;  Mitf.  Eq.  PI.,  by  Jeremy,  315,  317.  ting  in  such  answer,  and  complying 
lU.  S.  Eq.  Rule  64.  "  If,  at  the  hear-  with  such  other  terms  as  the  court 
ing,  the  exceptions  shall  be  allowed,  or  judge  may  direct."  1  Barb.  Ch. 
the  defendant  shall  be  bound  to  put  in  Pr.  185,  186. 
afull  and  complete  answer  thereto  on  ^U.  S.  Eq.  Rule  65. 


278  ANSWER  AS  EVIDENCE.  [§  207. 

sufficiency  or  insufficiency  of  the  exceptions  is  determined  upon 
motion  made  to  the  court.' 

§  207.  The  answer  as  evidence,—  It  is  a  general  rule  that 
the  answer  must  be  under  oath  unless  waived  by  the  plaintiff, 
and  if  an  answer  under  oath  is  not  waived,  the  sworn  answer 
when  filed  will  stand  as  a  deposition  in  the  case.-  But  if  a 
sworn  answer  is  waived,  then  the  answer  when  filed,  whether 
it  be  sworn  to  or  otherwise,  will  have  no  greater  weight  than 
any  other  pleading.  The  sworn  answer,  when  required  ornot 
waived,  so  far  as  it  is  responsive  to  the  bill,  will,  upon  the 
hearing  of  the  cause,  be  evidence  for  as  well  as  against  the 
defendant;  but  if  it  is  unsworn,  the  answer  under  oath  being 
waived,  it  may  be  evidence  against  the  defendant  but  not  for  him. 

"As  the  answer  of  a  defendant  is  a  formal  and  deliberate 
statement,  it  is  evidence  against  him,  and  when  made  under 
oath,  as  is  usually  the  case,  it  is  evidence  of  the  most  conclu- 
sive character.  Hut  whilst  this  is  so,  it  is  nevertheless  equally 
true  that  his  sworn  answer  is  also  evidence  in  his  favor,  equal 
in  weight  to  the  testimony  of  a  single  witness,  and  is  not  to 
be  discredited  nor  any  presumption  raised  against  it,  by  reason 
of  its  being  the  answer  of  an  interested  party.  And  the  an- 
swer is  sufficient  in  itself,  if  direct  and  positive,  and  responsive 
to  the  bill,  to  establish  the  denials  and  the  affirmations  of  facts 
which  it  contains  if  not  outweighed  by  opposing  proof."  == 

1  In  the  New  Jersey  chancery  court,  ing.  In  Michigan  it  is  provided  by 
Rule  No.  213  provides  that  any  objec-  Rule  10  that  "every  material  allega- 
tion toa  pleading,  or  any  part  thereof,  tion  in  the  bill  to  wiiich  the  defend- 
may  be  made  and  adjudicated  upon  ant  sliall  not  malie  answer  shall  be 
without  the  filing  of  a  demurrer  or  taken  as  admitted  by  the  defendant." 
exceptions;  a  defendant  may  move  And  further,  that  "all  objections  to 
to  strike  out  a  bill  when  the  plead-  an  answer  heretofore  raised  by  ex- 
ings  are  in  that  condition  in  which  ceptions  shall  be  disposed  of  by  the 
he  could  demur  to  it.  Ireland  v.  Kelly,  court  on  special  motion." 
(50  N.  J.  Eq.  308,  47  Atl.  51.  And  in  ^gtory,  Eq.  PI.  875a.  Where  an 
Rabenstein  v.  Chicago,  etc.  Co.,  11  answer  under  oath  was  not  waived, 
Ohio  CD.,  it  was  held  that  the  power  it  was  held  in  a  suit  to  set  aside  a 
is  inherent  in  a  court  for  the  expedi-  gambling  contract  that  a  sworu  an- 
tion  of  its  business  and  reduction  to  swer  was  evidence.  Patterson  v. 
singleness  and  certainty  of  the  issues  Scott,  142  111.  138,  31  N.  E.  433;  Cor- 
to  be  tried,  and  that  upon  its  own  bin  v.  Patton  (Va.,  1896),  26  S.  E.410; 
motion  it  has  the  power  to  order  ir-  Dexter  v.  Ohlander,  97  Ala,  470,  10  So. 
relevant,  redundant  or  superfluous  527. 
matter  to  be  stricken  out  of  a  plead-  3  Pickering  v.  Day,  3  Houst.  (Pel.) 


§  207.]  ANSWER  AS  EVIDENCE.  279 

This  rule  seems  to  be  based  upon  the  same  theory  as  that 
which  applies  to  the  production  of  witnesses.  The  complain- 
ant having  seen  fit  to  compel  the  defendant  to  file  a  sworn 
answer  has  substantially  made  him  his  witness,  and  so  he  can- 
not be  heard  to  say  that  the  answer  thus  required  is  entitled 
to  no  credit.^ 

In  Schwarz  v.  Wen delP  the  chancellor  said:  "The  question 
has  been  discussed  at  some  length,  how  far  the  defendant's 
answer  is  evidence.  The  general  rule  is,  that  whatever  is  re- 
sponsive to  the  bill  is  evidence  for,  as  well  as  against,  the  de- 
fendant. But  there  is  frequently  much  difficulty  in  applying 
the  rule,  and  regard  must  always  be  had  to  the  case  made  by 
the  bill,  in  determining  what  is  and  what  is  not  responsive. 
Is  the  fact  stated  in  the  bill,  and  answered  by  defendant,  ma- 
terial to  complainant's  case,  that  is,  must  it  be  proved  to  entitle 
him  to  relief;  or  is  it  a  circumstance  from  which  such  material 
fact  may  be  inferred  ?  — for  the  complainant  may  prove  his 
case  either  by  positive  or  presumptive  evidence.  If  it  is,  the 
answer,  as  it  regards  such  fact,  is  responsive  to  the  bill,  and  is 
evidence  in  the  cause.  It  may  also,  sometimes,  be  evidence 
of  a  fact  not  stated  in  the  bill;  as  where  the  bill  sets  forth 
part  of  complainant's  case,  only,  instead  of  the  whole,  and  the 
part  admitted  and  stated  in  the  answer  shows  a  different  case 

474,523;  Allen  v.  Mower,  17  Vt.  61;  fact  as  to  which   the  discovery  is 

Powell  V.  Powell,  7  Ala.  582.  sought;  yet  as  to  the  matter  in  re- 

12  Greenl.  Ev.,  sec.  285.  spect  of  which  tlie  bill  seeks  no  dis- 

2Walk.  Ch.   (Mich.)  267;   Dunham  covery,  if  the  answer  alleges  any- 

V.  Jackson,  6  Wend.  (N.  Y.)  22.  thing    affirmatively,   it   is  not  evi- 

In  Wharton   v.   Clements,   3  Del.  dence  for  the  defendant  but  it  is  to 

Ch.  209,  216,  it  was   held   that  even  be  proved  by  him." 

where    there    were    allegations   of  In  Reid  v.  McCallister  et  ux.,  49 

fraud,  the  defendant's  denial  by  an-  Fed.  16,  it  was  held,  "the  answer,  so 

swer  under  oath  might  be  admitted  far  as  it  is  responsive  to  the  bill,  is 

as  evidence  if  responsive  and  uncon-  evidence  for  the  defendant  making 

tradictive,  and  that  it  would  stand  it;  but  if  the  defendant,  by  his  an- 

the  same  as  any  other  kind  of  evi-  swer,  admits  a  fact  alleged   in  the 

^ience.  bill,  and  then  sets  up  another  matter 

In  Jones  v.  Cunningham,  7  W.  Va.  in  avoidance  thereof,  this  matter  in 

707,   713,   it   was  held,    "when   the  avoidance  is   not   responsive  to  the 

plaintiff,  by  bill  of  discovery,  seeks  bill,  and  his  answer  is  not  evidence 

a  discovery  from  the  defendant  as  of  it."  Clarke  v.  White,  12  Pet.  (U.  S.) 

to  any  matter  of  fact,  the  answer  is  190;  Hart  v.  Ten  Eyck,  2  Johns.  Ch. 

evidence  for  the  defendant  so  far  as  (N.  Y.)  87;    Farmers',   etc.    Bank  v. 

it  is  responsive  to  such  bill,  as  to  the  Griffith,  2  Wis.  443,  455. 


2S0  ANSWER  AS  EVIDENCE.  [§  208. 

from  that  made  by  the  bill,  and  is  not  matter  in  avoidance 
merely.  As  where  a  bill,  filed  to  redeem  stock,  alleged  it  had 
been  pledged  for  five  hundred  dollars,  and  the  answer  stated 
it  had  been  pledged  for  eight  hundred  dollars,  in  addition  to 
the  five  hundred  dollars  stated  in  the  bill,  the  answer  was  held 
to  be  responsive." 

The  rule  seems  to  be  clear  that  when  the  statements  of  fact 
contained  in  the  answer  are  responsive,  they  are  evidence;  but 
when  they  are  not  responsive,  although  they  may  be  material, 
they  must  be  proven  independent  of  the  answer.^ 

§208.  The  weight  of  evidence. —  Formerly  the  rule  was 
that  where  the  answer  was  responsive  to  the  bill  it  was  evi- 
dence for  the  defendant,  "and  the  plaintiff  must  overcome  it 
by  the  counter-evidence  of  two  witnesses,  or  of  one  witness 
and  strong  circumstances  in  corroboration,"  otherwise  it  would 
prevail.^  While  this  rule  is  often  quoted  by  the  courts  of  some 
of  the  states,  it  can  hardly  be  said  to  obtain  at  the  present 
time;  the  sworn  answer  simply  stands  in  the  case  as  the  deposi- 
tion of  the  defendant;  it  may  be  rebutted  by  any  evidence  or 
circumstance  which  would  convince  the  court  of  its  untruth- 
fulness; in  other  words,  it  stands  upon  no  different  rule  than 
does  any  of  the  proof  adduced  in  the  cause. 

In  Veile  v.  Blodgett^  it  was  held  that  it  was  only  necessary 
to  produce  sufficient  proof  to  outweigh  the  evidence  in  such 
an  answer;  the  answer  being  only  equivalent  to  the  deposi- 
tion of  one  witness.     And  in  How  v.  Camp  *  the  chancellor 

1  Blaisdell,  Adm'r,  V.  Bowers,  40  Vt  v.  Landis,  21  N.  J.  Eq.  133;  Bent  v. 
126;  Walthall's  Ex'rs  v.  Rives,  etc.  Smith,  20  N.  J.  Eq.  199;  Coldiron  v. 
Co.,  34  Ala.  91,  96;  Laughiin  v.  Ashville,  etc.  Co.,  93  Va.  364,  25  S.  E. 
Greene,  13  Ga.   359.     In   Common-  238. 

wealth  V.  Cullen,  13  Pa.  St.  (1  Har.)  »49  Vt.  270;  King  v.  Payan,  etc. 
133,  143,  it  was  held  that  "  in  equity  Co.,  18  Ark.  583,  591,  where  it  was 
proceedings  the  distinction  seems  to  held  that  in  the  particular  case  the 
be  that  an  answer,  if  responsive,  is  answer  at  least  would  be  'prima 
evidence  of  the  fact  it  alleges,  re-  facie  evidence  for  the  party  making 
quiring  testimony  to  rebut  it;  but  it,  if  not  absolute  proof  of  the  facts 
if  the  matter  set  forth  be  not  respon-  stated  as  to  the  payment,  so  as  to  re- 
si  ve,  it  is  not  evidence  of  that  matter  quire  the  usual  countervailing  proof 
at  all,  but  must  be  proved."  Clark's  in  cases  necessary  to  outweigh  an 
Ex'rs  V.  Van  Riemsdyk,  9  Cranch,  answer  in  chancer}-."  Brown  v. 
(U.  S.),  160.  Bulkley,  14  N.  J.  Eq.  294,  301;  Picker- 

2  Story,  Eq.  PL,  sec.  849a;  Zane  v.  ing  v.  Day,  3  Houst.  (Del.)  474. 
Cawley,  21  N.   J.  Eq.    130;    Calkins  4  Walk.  Ch.  (Mich.)  427,  430.     As  to 


§  209.]  ans\s':er  as  evidence. 


281 


said:  "  The  denial  of  the  fraud  by  defendants,  in  their  answer, 
is  not  conclusive  upon  the  court  if  the  facts  and  circumstances 
of  the  case  are  such  as  irresistibly  lead  the  mind  to  a  different 
conclusion.  When  fraud  is  denied  it  is  not  to  be  inferred  fronL 
slight  circumstances;  but  a  denial  of  it  does  not  preclude 
inquiry,  or  disarm  the  court  of  its  power,  when,  from  the 
pleadings  and  proofs,  it  is  satisfied  of  its  existence."  And  so 
it  has  been  held  that  an  answer  which  is  grossly  evasive  can- 
not have  the  force  of  one  that  shows  apparent  good  faith.^ 

§  200.  Admissions  in  the  answer.— If  the  facts  alleged  in 
the  bill  be  admitted  by  the  answer,  then  as  to  such  allegations 
the  case  stands  as  proven,  for  the  admissions  will  be  taken  as 
evidence  against  the  defendant;  this  is  the  rule  in  unsworn  as 
well  as  sworn  answers.  "  If  the  answer  of  the  defendant 
admits  a  fact,  but  insists  on  matter  by  way  of  avoidance,  the 
complainant  need  not  prove  the  fact  admitted,  but  the  defend- 
ant must  prove  the  matter  in  avoidance."  ^  As  has  already 
been  said,  if  the  case  is  heard  upon  bill  and  answer,  the  plaint- 
iff not  filing  a  replication,  the  answer  of  the  defendant  is  con- 
clusive evidence,  and  this  even  as  to  fraud  alleged  in  the  bill 
of  complaint.' 

In  Ilyer  v.  Little*  where  the  bill  waived  an  answer  under 
oath,  but  the  answer  was  verified,  it  was  held  that  it  was  no 
evidence  for  the  defendant,  but  that  any  admissions  it  con- 
tained were  operative  against  him.  And  where  the  answer 
under  oath  was  waived  and  a  replication  filed,  it  was  held  that 
the  admissions  in  the  answer,  by  the  defendant,  of  any  facts 
stated,  would  be  evidence  against  him,  but  that  the  complain- 
ant could  not  use  one  part  and  exclude  other  parts  relating  to 

the  rule  that  two  witnesses,  or  one  main  questions  in  the  case  are  as  to 

witness  and  corroborating  circum-  the  truth  of  the  facts;  these  must  be 

stances,  are  required  to  overcome  a  ascertained  by  the  evidence  alone, 

sworn  answer,  see  Savings,  etc.  Soc.  The  bill  prays   that  the   defendant 

V.  Davidson,  38  C.  C.  A.  365,  97  Fed.  may    answer     without    oatli,    and, 

696;  Salsbury  v.  Ware,  183  111.  505,  therefore,      his     answer,     although 

56  N.  E.  149;  Hannaman  v.  Wallace,  sworn  to,  is  no  evidence  for  him, 

97  111.  App.  46.  though  any  facts  admitted  in  it  are 

1  Fairbairn  v.  Middlemiss,  47  Mich,  conclusive  against  him." 

372.  3  Cunningham  v.  Freeborn,  3  Paige 

2  Clark  et  al.  v.  White,  12  Pet  (U.  (N.  Y.),  557;  Barton  v.  International 
S.)  178,  189.     In  Hyer  v.  Littie,  20  N.     etc.  Co.,  85  Md.  14,  36  Atl.  658. 

J.  Eq.  448,  445,  it   was  said:     "The        *  20  N.  J.  Eq.  443. 


2S3  ANSWER  WILL  NOT  AFFORD  AFFIRMATIVE  RELIEF.      [§  210. 

the  same  subject  that  would  be  responsive  to  the  bill  had  the 
answer  been  under  oath.^  And  if  the  answer  is  so  framed  that 
because  of  its  omissions,  or  otherwise,  it  admits  by  implication 
allegations  contained  in  the  bill,  even  though  the  answer  is  not 
upon  oath,  the  complainant  should  be  relieved  from  the  burden 
of  proof. 

In  ShooTc  V.  Proctor^  the  court  in  discussing  this  question  s;iy 
that  it  would  seem  "that  a  mere  failure  to  deny  a  fact  in  the 
answer  is  no  admission  of  the  fact,  but  there  must  be  some- 
thing further,  something  in  what  is  said  in  the  answer  or  the 
particular  ground  or  issue  upon  which  the  defendant  places  his 
defense,  which  points  to  and  involves  the  admission  in  question. 
But  where  a  bill,  for  instance,  sets  up  the  execution  of  a  prom- 
issory note  by  the  defendant  to  the  complainant  and  its  loss, 
claiming  that  the  amount  of  it  is  due  and  unpaid,  seeking  to 
base  a  decree  upon  it  in  his  favor,  an  answer,  especially  if  not 
on  oath,  and  therefore  purely  voluntary,  which  states  that  the 
note  was  paid  to  the  complainant  and  delivered  up  to  the  de- 
fendant, and  that  he  has  it  in  his  possession,  would  be  a  very 
clear  implied  admission  of  the  execution  of  the  note  by  the  de- 
fendant, and  would  relieve  the  complainant  of  proof  of  such 
execution.  This  would  certainly  be  the  common  sense  conclu- 
sion anywhere  outside  of  a  court  of  chancery,  and  I  have  failed 
to  see  any  satisfactory  reason  why  that  court,  more  than  any 
other,  should  repudiate  the  dictates  of  common  sense  and  sound 
logic  upon  which  human  affairs  are  conducted,  for  a  merely 
arbitrary  rule  which  is  recognized  by  sane  minds  nowhere  else." 

§  210.  The  answer  will  not  afford  affirmative  relief. —  The 
answer  is  a  defense  pleading,  used  simply  to  meet  the  case 
made  by  the  bill  of  complaint  and  not  to  obtain  further  or 
affirmative  relief.     If  the  defendant  desires  positive  or  affirm- 

1  Duifee  V.  McClurg,  6  Mich.  233;  from  such  admissions.  And  see 
Morris  v.  Hoyt,  11  Mich.  9.  Young  v.  McKee,  13  Mich.  552,  and 

2  27  Mich.  349,  359.  In  Scliwarz  v.  Hardwick  v.  Bassett,  25  Mich.  149. 
Sears,  Walk.  Ch.  (Mich.)  19,  it  was  In  chancery  practice  it  has  been  held 
held  that  the  admissions  in  a  bill  or  that  every  material  allegation  in  the 
answer  to  be  conclusive  on  the  party  bill  which  is  not  admitted  by  the 
must  be  full  and  unequivocal;  that  answer  is  denied.  Yates  v.  Thomp- 
unless  the  express  admissions  ai'e  son,  44  111.  App.  145;  Litch  v.  Clinch, 
clearly  connected  with  the  one  to  be  136111.  410;  Wingo  v.  Hardy,  94  Ala* 
inferred    they    cannot    be    inferred  184. 


§  211.]      ANSWER  WILL  NOT  AFFORD  AFFIRMATIVE  RELIEF.  28^:^ 

ative  relief  beyond  the  case  made  by  the  bill,  he  can  only  ob- 
tain it  by  filing  a  cross-bill;  nor  will  the  answer  afford  relief 
against  the  co-defendant.  "This  is  the  uniform,  and  I  appre- 
hend the  only,  course  where  a  defendant  is  entitled  to  some 
positive  relief  beyond  what  the  scope  of  the  complainant's  suit 
will  afford  him.''^  But  if  the  matter  depended  upon  be  purely 
defensive,  the  defendant  will  not  be  permitted  to  set  it  up  by 
way  of  cross-bill,  but  must  rely  upon  it  by  answer;  for  it  is 
only  in  cases  where  the  answer  is  not  available  because  affirm- 
ative relief  is  sought,  or  proceedings  are  necessary  to  obtain 
relief  against  a  co-defendant,  that  the  defendant  will  be  per- 
mitted to  proceed  by  cross-bill.^ 

§  211.  Same  subject  —  Some  exceptions.— There  are  seem- 
ingly some  exceptions  to  the  rule  stated  in  the  preceding  sec- 
tion which  grow  out  of  the  peculiarities  of  the  particular  cases 
in  which  they  occur;  as,  for  example,  in  a  case  for  partition, 
the  affirmative  relief,  to  the  extent  of  setting  off  to  the  defend- 
ant his  part  or  portion  of  the  property,  can  be  had  upon  an  an- 
swer, for  the  reason  that  in  such  cases  each  party  asks  for  an 
allotment  of  his  portion.  This  is  really  the  prayer  of  the  bill, 
and  it  is  understood  by  each  party  that  he  is  to  grant  and  ac- 
cept an  equitable  division  of  the  property  in  question;  in  other 
words,  it  is  not  an  adversary  proceeding.*  r>ut  where  the  de- 
fendant in  a  partition  suit,  in  addition  to  a  defense  by  answer 
by  way  of  setting  up  denials  of  allegations  in  the  bill,  which 
if  true  would  require  a  dismissal  of  the  bill,  averred  that  he  was 
entitled  to  the  whole  premises  of  which  partition  was  sought, 
it  was  held  that  such  an  answer  would  be  proper  as  a  defense; 
but  if  defendant  sought  afffrraative  relief  by  a  decree  for  a 
transfer  to  him  of  the  legal  title  to  the  whole  premises,  or  of 
discovery  to  establish  his  equitable  defense,  his  answer  would 
not  afford  him  this  privilege  — he  could  only  obtain  such  relief 
by  way  of  cross-bill.* 

In  actions  for  specific  performance  the  exception  prevails, 

iPattison  v.  Hull,  9  Cow.  (N.  Y.)  593;   Bank  v.  Sanford,  103  Fed.  98; 

747,   756;   Schwarz   v.    Sears,  Walk.  Hook  v.  Richeson,  115  111.  431,  5  N.  e! 

Ch.  (Mich.)  19;  Williams  v.  Congre-  98. 

gational  Church,  193  Pa.  St.  120,  44  SMcCloskey  v.  Barr,  48  Fed.  134; 

■^tL  273.  Kern  v.  Zink,  55  111.  449. 

2  Wight  V.  Downing,  90  III.  App.  1 ;  4  German  v.  Machin,  6  Paige  (N.  Y.), 

McGuire  v.  Circuit  Judge,  69  Mich.  288,  299. 


2S4  ANSWER  WILL  NOT   .VFFORD   AFFIRMATIVE  RELIEF.     [§  211. 


for  in  such  cases  if  the  court  would  do  equity  between  the 
parties  it  is  usually  compelled  to  give  to  the  defendant  some 
affirmative  relief;  it  is  necessary  in  order  to  settle  definitely 
the  rights  of  the  parties  and  save  further  litigation  and  ex- 
pense. And  so  where  a  bill  prayed  for  a  specific  performance 
of  a  written  contract,  and  upon  the  hearing  it  appeared  by 
proof  that  there  were  some  variations  or  additions  to  the  con- 
tract contemporaneous  with  its  execution,  a  decree  for  specific 
performance  of  the  contract  as  modified  was  granted  without 
a  cross-bill.'  This  exception  also  obtains  in  cases  of  account- 
mg,  for  in  such  case  it  is  understood  by  the  parties  that  the 
whole  of  the  business  in  which  the  accounting  is  sought  is  sub- 
mitted to  be  settled  justly  and  equitably.  The  whole  case 
will  therefore  be  adjudicated  not  only  as  claimed  by  the 
plaintiff,  but  the  claim  of  the  defendant  will  be  considered 
upon  his  answer  to  the  bill,  and  if  necessar}'',  in  order  to  make 
settlement  between  the  parties,  affirmative  relief  will  be  granted 
without  a  cross-bill.-  And  so  the  rights  of  infant  defendants  will 
be  protected,  and  affirmative  relief  granted  upon  answer  alone. 


iRedfield  v.  Gleason,  61  Vt  220. 
Pomeroy  states  the  rule  in  his  Equity 
Jurisprudence  at  section  8G0.  "  If 
the  plaintiff  alleges  a  written  agree- 
ment, and  demands  its  specific  per- 
formance, and  the  defendant  sets  up 
in  his  answer  a  verbal  provision,  or 
stipulation,  or  variation  omitted  by 
mistake,  surprise  or  fraud,  and  sub- 
mits to  an  enforcement  of  the  con- 
tract as  thus  varied,  and  clearly 
proves  by  his  parol  evidence  that  the 
written  contract,  modified  or  varied 
in  the  manner  alleged  by  him,  con- 
stitutes the  original  and  true  agree- 
ment made  by  the  parties,  the  court 
may  not  only  reject  the  plaintiff's 
version,  but  may  adopt  that  of  the 
defendant,  and  may  decree  a  specific 
performance  of  the  agreement  with 
parol  variation  upon  the  mere  alle- 
gations of  his  answer,  without  requir- 
ing a  cross-bill.  The  court  will  either 
decree  a  specific  execution  of  the 
contract  thus  varied  by  the  defend- 
ant, or  else,  if  the  plaintiff  refuses  to 


accept  such  relief,  will  dismiss  the 
suit.  Under  the  old  chancery  prac- 
tice, the  action  of  the  court  in  such 
cases  seemed  to  have  been  discre- 
tionary. Under  the  reformed  pro- 
cedure, which  permits  affirmative  re- 
lief, either  legal  or  equitable,  to  be 
obtained  by  defendants  through  a 
counter-claim,  such  a  decree,  under 
proper  pleadings,  is  doubtless  a  mat- 
ter of  course  and  of  right.  Even 
where  there  has  been  no  mistake, 
surprise  or  fraud,  if,  in  such  a  suit, 
the  defendant  alleges  and  proves  an 
additional  parol  provision  or  stipula- 
tion agreed  upon  by  the  parties,  the 
court  will  decree  a  specific  perform- 
ance of  the  written  contract  with 
this  verbal  provision  incorporated 
into  it,  or  else  will  dismiss  the  suit 
entirely."  Adams  v.  Valentine,  3'3 
Fed.  1 ;  Coogan  v.  McCarran,  50  N.  J. 
Eq.  611;  Bradford  v.  Tennessee,  etc. 
18  How.  (U.  S.)  57. 

2  Scott  V.  Lalor,   18  N.  J.  Eq.   301; 
Little  V.  Merrill,  62  Me.  328;   VVyatt 


ft  212.1  DEFENSES    IN    EQUITY.  28& 

A  very  satisfactory  reason  for  the  rule  is  given  in  the  opin- 
ion of  the  court  in  Stark  et  al.  v.  Broion  et  aU  "  It  was  the  spe- 
cial duty  of  the  guardian  ad  litem  to  submit  to  the  court,  for 
its  consideration  and  decision,  every  question  involving  the 
rights  of  his  wards.  And  the  court  will  protect  the  rights  of 
infants  where  they  are  manifestly  entitled  to  something,  al- 
though their  guardian  ad  litem  neglects  to  claim  it  in  their 

behalf." 

So  in  actions  for  marshaling  assets  the  court  will  adopt  the 
liberal  rule  and  usually  grant  necessary  relief  to  the  defendant 
upon  an  answer.^ 

§  212.  The  cross-l)ill.— It  is  the  aim  of  the  equity  court  to 
settle  the  whole  controversy  between  the  parties,  and  "  not  by 
halves."  As  we  have  seen,  for  this  reason  all  interested  par 
ties  are  brought  in  upon  the  same  principle,  and  to  accomplish 
the  same  end  the  cross-bill  is  used. 

As  noticed  in  the  preceding  section,  the  answer  of  the  de- 
fendant is  only  used  in  making  a  defense  to  the  bill,  and  it 
often  happens  that  the  defendants,  one  or  more  of  them,  are 
entitled  to  affirmative  relief  against  the  complainant,  or  the 
complainant  and  co-defendants,  one  or  all  of  them;  and  the 
controversy  cannot  be  justly  and  equitably  settled  by  the  court 
unless  this  affirmative  relief  can  be  granted.  The  cross-bill 
meets  such  like  cases;  it  is  a  bill  brought  by  a  defendant 
against  the  plaintiff,  and,  if  necessary,  other  parties,  for  relief 
in  matters  which  grow  out  of,  or  are  auxiliary  to,  the  main 
controversy.  It  is  filed  to  bring  all  the  matters  mvolved  in  the 
original  suit  completely  before  the  court;  as,  for  example, 
where  the  owner  of  an  upper  mill  privilege  filed  a  bill  id 
equity  against  the  owner  of  another  mill  privilege  lower  dowi? 
the  stream  to  restrain  him  from  maintaining  his  dam  at  toe 
great  a  height  because  it  caused  the  water  to  set  back  upor 
the  mill  of  "the  plaintiff  and  thus  hindered  the  plaintiff  in  oper 
ating  his  mill,  it  was  held  that  in  such  a  case  the  defendant, 
owner  of  the  lower  mill  privilege,  might  file  a  cross-bill  in  the 
same  suit  and  have  settled,  by  the  decree  of  the  court,  alleged 
infringements  by  the  plaintiff  of  his  use  of  the  stream.     The 

V.  Sweet,  48  Mich.  539;  Raymond  v.        » 101  111.  395,  398. 

Came.  45  N.  H.  201;  Johnson  v.  But-        2  Lehman  v.  Tallassee,  etc.,  64  Ala, 

tier,  31  N.  J.  Eq.  35.  568. 


2  so  DEFENSES — CROSS-BILLS.  [§212. 

court  say:  "By  their  cross-bill  the  defendants  allege  that  cer- 
tain injuries  have  been  done  to  them  by  the  plaintiff  in  the 
occupation  of  its  estate.  As  these  alleged  grievances  relate 
to  the  subject-matter  presented  by  the  plaintiff's  bill,  namely, 
the  rights  of  the  respective  parties  in  the  use  of  the  stream 
which  furnishes  the  power  for  each  privilege,  they  are  properly 
to  be  now  considered  in  order  that,  if  they  exist,  they  may  be 
redressed  here.  The  plaintiff,  in  seeking  the  aid  of  a  court  of 
equity,  should  itself  be  prepared  to  do  equity."  ^ 

"  A  cross-bill  is  brought  by  a  defendant  in  a  suit,  against  the 
plaintiff  in  the  same  suit,  or  against  other  defendants  in  the 
same  suit,  or  against  both,  touching  the  matters  in  question  in 
the  original  bill.  It  is  brought  either  to  obtain  a  discovery  of 
facts,  in  aid  of  the  defense  to  the  original  bill,  or  to  obtain 
full  and  complete  relief  to  all  parties,  as  to  the  matters  charged 
in  the  original  bill.  It  should  not  introduce  new  and  distinct 
matters  not  embraced  in  the  original  bill,  as  they  cannot  be 
properly  examined  in  that  suit,  but  constitute  the  subject-mat- 
ter of  an  original,  independent  suit.  The  cross-bill  is  auxiliary 
to  the  proceeding  in  the  original  suit,  and  a  dependency  upon 
it."^    But  where  the  relief  sought  in  a  cross-bill  can  be  en- 

1  Atlanta  Mills  v.  Mason,  1'20  Mass.  them,  touching  the  matters  in  ques- 

244.  tion  in  the  original  bill.     Whenever 

"i  Ayres  v.  Carver  et  aL,  17  How.  it  is  brought  against  co-defendants 
(5S  U.  S.)  591,  595:  Kidder  v.  Barr,  35  in  a  suit,  the  complainant  in  such 
N.  H.  235,  251.  "  A  cross-bill  is  a  bill  suit  must  be  named  a  defendant  to- 
brought  by  a  defendant  against  a  gether  with  them.'  The  last  named 
l)laintiff,  or  other  parties  in  a  former  author  in  same  volume  at  page  130 
bill  depending,  touching  the  matter  says:  '  A  cross-bill  should  be  confined 
in  question  in  that  bill."  Mitf.  Eq.  to  the  matters  stated  in  the  original 
PI.,  sec.  383;  Story,  Eq.  PI.,  sec.  389;  bill,  and  should  not  introduce  new 
White  V.  Buloid,  2  Paige  (N.  Y.),  164;  and  distinct  matter  not  embraced 
Vail  V.  Arkell,  48  111.  App.  466;  West  therein;  and  if  he  does  so,  no  decree 
Virginia,  etc.  Co.  v.  Vinal,  14  W.  Va.  can  be  founded  upon  those  matters; 
637,  678.  In  this  case  the  court  in  its  for  as  to  them  it  is  an  original  bill.' 
opinion  quotes  from  Barbour  and  The  same  author,  at  page  131,  also 
other  authors.  •' In  the  second  vol-  says:  'A  cross-bill  being  generally 
ume  of  Barbour's  Chancery  Practice,  considered  as  a  defense  to  the  orig- 
at  page  l'i7,  it  is  said,  'A  cross-bill  inal  bill,  or  as  a  proceeding  necessary 
ex  vi  terminorum  implies  a  bill  to  a  complete  determination  of  a 
brought  by  some  or  one  of  the  de-  matter  already  in  litigation,  the  com- 
fendants  in  a  suit  against  the  com-  plainant  is  not,  at  least  as  against 
plainant  or  against  him  and  other  the  complainant  in  the  original  bill, 
defendants  in  that  bill,  or  some  of  obliged  to  show  any  ground  of  equity 


§  213.] 


DEFENSES — CROSS-BILLS. 


287 


tirely  obtained  by  an  answer  and  proceedings  in  the  orio-inal 
suit,  the  cross-bill  will  be  dismissed.' 

§  213.  Necessity  and  object  of  cross-bill.— The  necessity 
of  such  a  bill  is  already  quite  apparent.  It  avoids  the  bring- 
ing of  an  independent  separate  action  to  settle  some  part 
or  portion  of  the  controversy  existing  between  the  parties 
which  cannot  be  tried  and  determined  in  the  original  suit.  It 
widens  the  issue  and  brings  into  one  litigation  the  whole 
controversy  with  all  the  questions  and  matters  of  dispute 
growing  out  of  the  case  made  by  the  original  bill  and  which 
are  in  reality  a  part  of  it. 

Because  of  the  rules  governing  the  answer  to  the  original 
bill,  a  defendant,  but  for  the  cross-bill,  would  be  compelled,  in 
order  to  obtain  the  relief  to  which  he  is  justly  and  equitably 
entitled,  to  file  a  separate  and  independent  bill.  The  cross-bill 
will  give  relief  in  the  same  litigation,  and  so  it  is  often  neces- 
sary to  resort  to  it.  A  cross-bill  may  be  filed  to  obtain  dis- 
covery of  facts  in  aid  of  the  defense,  or  to  obtain  full  and 


to  support  the  jurisdiction  of  the 
court  It  is  treated,  in  short,  as  a 
mere  auxiliary  suit,  or  as  a  depend- 
ency upon  the  original  suit.  But 
where  a  cross-bill  seeks  not  only 
discovery,  but  relief,  care  should  be 
taken  that  the  relief  prayed  by  the 
cross-bill  should  be  equitable  relief; 
for  to  this  extent  it  may  be  consid- 
ered as  not  purely  a  cross-bill,  but  in 
tlie  nature  of  an  original  bill  seeking 
further  aid  from  the  court;  and  then 
the  relief  ought  to  be  such  as  in 
point  of  jurisdiction  it  is  competent 
for  the  court  to  give.'"  Jones  v. 
Smith,  14  111.  (4  Peck),  229;  Sims  v. 
Burk,  109  Ind.  314,  9  N.  E.  902. 

In  Davis  v.  Cook,  65  Ala.  617,  623, 
the  court,  quoting  from  Mitf.  Eq.  PI. 
80,  said:  "A  cross-bill  is  a  bill 
brought  by  a  defendant  against  a 
plaintiflF,  or  other  parties  in  a  former 
bill  depending,  touching  the  matter 
in  question  in  that  bill.  A  bill  of 
tills  kind  is  usually  brought  to  obtain 
a  necessary  discovery,  or  full  relief 
to  all  parties.    It  f requen  tly  happens. 


and  particularly  if  any  question 
arises  between  two  defendants  to  a 
bill,  that  the  court  cannot  make  a 
complete  decree  without  a  cross-bill 
or  cross-bills,  to  bring  every  matter 
in  dispute  completely  before  the 
court,  litigated  by  the  proper  parties, 
and  upon  proper  proofs.  In  this  case 
it  becomes  necessary  for  some  or  one 
of  the  defendants  to  the  original  bill 
to  file  a  bill  against  the  plaintiff  and 
other  defendants  in  that  bill,  or  some 
of  them,  and  bring  the  litigated  point 
properly  before  the  court.  But  a 
cross-bill  being  generally  considered 
as  a  defense,  or  as  a  proceeding  to 
procure  a  complete  determination  of 
a  matter  already  in  litigation  in  the 
court,  the  plaintiff  is  not,  at  least  as 
against  the  plaintiff  in  the  original 
bill,  obliged  to  show  any  ground  of 
equity  to  support  the  jurisdiction  of 
the  court." 

>  Bogle  v.  Bogle,  85  Mass.  (3  Allen), 
158;  Bramau  v.  Wilkinson,  3  Barb. 
(N.  Y.)  151. 


288  DEFENSES — CROSS-BILLS.  [§  213. 

complete  relief  as  to  the  matters  charged  in  the  original 
bill.' 

Where  a  bill  was  filed  by  a  street  railway  company  to  re- 
strain the  defendant,  a  city,  from  removing  its  tracks  from  the 
streets  and  revoking  its  franchises  granting  it  privileges  in  the 
streets,  a  mortgagee  was  permitted  to  file  a  cross-bill  asking 
for  the  appointment  of  a  receiver  of  complainant's  property 
with  power  to  operate  the  road  and  to  borrow  money  to  en- 
able it  to  meet  expenditures  required  by  the  terms  of  the  fran- 
chise in  order  to  preserve  the  property.  It  was  held  that  the 
subject-matter  of  such  a  cross-bill  and  the  relief  sought  were 
germane  to  the  original  bill  and  should  be  allowed.  The  court 
say:  "Can  it  be  that  a  court  of  equity  is  without  power  to 
protect  the  interests  of  the  bondholders  when  their  repre- 
sentative stands  ready,  on  receiving  the  proper  order  of  the 
court,  to  advance  the  necessary  money  to  prevent  the  for- 
feiture ?  "  2 

"Where  one  or  more  of  several  defendants  stand  in  a  differ- 
ent relation  to  the  subject-matter  of  the  controversy  than  oth- 
ers of  the  parties,  having  not  only  a  defense  to  the  original 
suit  but  also  certain  equitable  rights  against  other  defendants, 
or  defendants  and  complainants,  or  some  of  them;  or  where, 
since  the  case  has  been  at  issue,  certain  matters  have  arisen 
that  offset  the  whole  matter  in  dispute,  in  such  and  similar 
cases  the  cross-bill  can  be  invoked. 

From  what  has  been  said  it  will  be  seen  that  a  cross-bill  may 
be  in  the  nature  of  a  bill  for  discovery  or  a  bill  for  relief.     It 

^Ayres  v.  Carver,  58  U.  S.  (17  How.)  bill,  which  must  be  strictly  confined 

591.      In     Andrews    v.    Kibbee,    13  to  matters  involved  in  the  cause.    A 

Mich.  96.  the  court  said:    "A  cross-  bill  which  introduces  otherdistinct 

bill  for  purposes  of  relief  is  always  matters  is  an  original  bill,  and  the 

designed  for  the  purpose  of  enabling  suits    are    separate    and    distinct." 

a  defendant  to  avail  himself  of  some  Story,  Eq.   PL,   sec.   631;    Griffith  v. 

defense   which   can    only    be   made  Merritt,  19  N.  Y.  529. 

complete    by    granting    him    some  ^  Union  Street  Ry.  Co.  v.  City  of 

affirmative  relief  against  complain-  Saginaw.  115  Midi.  300;    Powers  v. 

ant,  or  against   some   co-defendant.  Hibbard.   114  Mich.   533;    Griffin   v. 

Equity  rarely  can  grant  any  affirm-  Griffin,  112  Mich.  87;  Barton  v.  Bar- 

ative  relief  upon  an  answer  alone,  hour,  104  U.  S.  126;  Pollard  v.  Well- 

If  this  could  be   done,  there   could  ford,  99  Tenn.  113;  Ray  v.  Home,  etc. 

never  be  any  occasion  for  a  cross-  Co.,  106  Ga.  492,  33  S.  K  603. 


I  214.]  DEFENSES CROSS-BILLS.  289 

is,  however,  always  an  auxiliary  of,  and  dependent  upon,  the 
original  bill.' 

A  defendant,  having  filed  his  cross-bill  praying  for  aflBrma- 
tive  relief,  is  entitled  to  a  hearing  upon  it,  and  the  complain- 
ant in  the  original  bill  cannot  deprive  him  of  this  privilege  by 
dismissing  the  original  bill.^  But  if  the  facts  set  out  in  the 
cross-bill  can  all  be  proven  under  an  answer,  and  no  relief  is 
sought  except  such  as  would  necessarily  follow  the  dismissal 
of  the  original  bill,  a  demurrer  to  a  cross-bill  would  be  sus- 
tained.' And  if  the  cross-bill  contains  new  and  distinct  mat- 
ters which  are  in  no  way  germane  to  the  subject-matter  of  the 
original  bill,  the  cross-bill  cannot  be  sustained.*  And  where 
it  appears  that  the  original  bill  is  without  equity  the  cross-bill 
should  be  dismissed.^ 

§  214.  The  relief  sought  must  be  equitable  relief. —  The 
cross-bill  is  but  an  auxiliary  proceeding  to  the  original  bill;  a 
bill  seekins:  further  relief  because  of  the  existence  of  further 
and  other  equities  growing  out  of  and  a  part  of  the  same  trans- 
action; equities  which  are  germane  to  the  equities  depended 
upon  and  set  out  in  the  original  bill.  If  the  relief  sought  by 
the  cross-bill  is  not  equitable  relief,  the  bill  would  be  subject 
to  a  demurrer,  for  the  court  in  which  it  is  filed  and  in  which 
it  must  be  heard  and  determined  is  an  equity  court  and  would 
have  no  jurisdiction  to  dispose  of  it,  or  grant  the  relief,  if  the 
cross-bill  did  not  set  up  an  equitable  case  and  ask  for  equitable 
relief, 

iCanantv.  Mappin,  etc.,  20Ga.  730.  zwilcox  v.    Allen,   36   Mich.  160, 

"A  cross-bill  is  nothing  more  than  171. 

an  addition  to  the  answer."  In  Hack-  3  Gordon  v.  Johnson,  79  III.  App. 

ley  V.  Mack,  60  Mich.  591,  it  was  held  423.     "Where  the  matter  set  up  in 

that  a  cross-bill  can   only   be   sus-  the  cross-bill  is  purely  defensive  mat- 

tained  when  filed  to  obtain  relief  as  ter  and  available  under  an  answer, 

to  the  matters  growing  out  of  the  the  cross-bill  cannot  be  sustained." 

origmal  bill,  and  that  such  a  bill  can-  Woodard  v.  Bird,  105   Tenn.  671,  59 

rot  be  tiled  in  any  case  where  the  S.  W.  143. 

complainant  could  not  have  filed  an  <  Wight  v.  Downing,  90  III  App.  1; 

original  bill  for  the   same  purpose.  Mathiason  v.  City  of  St.  Louis,  156 

In  Cook  V.  Wheeler,  Harr.  Ch.  (Mich.)  Mo.  196,  56  S.  W.  890. 

448,  it  was  held  that  where  the  cross-  *  Carroll  v.  Richardson,  87  Ala.  605; 

bill  merely  seeks  discovery  that  does  Dill  v.  Shahan,  25  Ala,  694,  60  Am. 

not  constitute  a  defense  to  the  orig-  Dec.  540. 
inal  bill,  it  is  not  demurrable. 
19 


290  DEFENSES — CROSS-BILLS.  [§  215. 

In  Tobey  et  al.  v.  Foreman  ^  the  court  say:  "  But  wherever 
the  cross-bill  seeks  relief,  it  is  indispensable  that  it  should  be 
equitable  relief,  otherwise  the  bill  will  be  demurrable;  for  to 
this  extent  it  is  not  a  pure  cross-bill,  but  it  is  in  the  nature  of 
an  original  bill,  seeking  further  aid  of  the  court,  beyond  the 
purposes  of  defense  to  the  original  bill.  And,  under  such  cir- 
cumstances, the  relief  should  be  such  as,  in  point  of  jurisdic- 
tion, the  court  is  competent  to  administer." 

§  215.  Parties  to  the  cross-bill. —  It  is  a  general  rule  that 
a  cross-bill  cannot  be  filed  by  one  who  could  not  file  an  orig- 
inal bill  for  the  same  purpose.^  There  seems,  however,  to  be 
an  exception  to  this  rule  in  the  federal  courts  where  it  is  per- 
mitted to  a  defendant  in  the  original  suit,  who  is  of  the  same 
citizenship  as  that  of  the  defendants  against  whom  the  cross- 
bill is  brought,  to  file  such  a  bill,  where  the  court  has  jurisdic- 
tion of  the  original  suit.'  As  to  who  may  be  parties  to  a  cross- 
bill, however,  the  authorities  do  not  seem  to  be  entirely 
harmonious.  The  general  doctrine  seems  to  be  that  a  cross- 
bill can  only  be  filed  by  a  defendant  or  defendants  to  the 
original  bill  against  the  other  parties,  complainants  or  defend- 
ants to  the  original  bill,  or  some  of  them.  But  what  is  the 
rule  in  case  the  defendant  who  files  the  cross-bill  conceives  it 
necessary  to  the  complete  settlement  of  the  controversy,  to 
introduce  new  parties  by  his  cross-bill  —  parties  that  are  neces- 
sary or  perhaps  indispensable  to  a  full  consideration  and  set- 
tlement of  the  facts  raised  and  relief  sought  by  the  cross-bill, 
such  facts  and  such  relief  being  germane  to  the  issue  tendered 
by  the  pleadings  ?  Upon  this  question  the  courts  have  not 
been  harmonious.     In  Shields  v.  Barrows,^  Mr.  Justice  Curtis 

179  111.  489,  491;  Story,  Eq.  PI.  629,  matter  of  the  original  bill.  The 
398.  And  where  the  facts  in  the  scope  and  object  of  the  cross-bill 
cross-bill  disclosed  no  equity,  it  was  must  therefore  be  within  the  pur- 
held  that  it  should  be  dismissed,  poses  of  the  original  bill  and  ger- 
Kemeys  v.  Netterstrom,  86  111.  App.  mane  to  it.  Hurd  v.  Case,  32  111.  45, 
590;  Martin  v.  Kester,  46  W.  Ya.  438.  83  Am.  Dec.  249;  Rutland  v.  Paige, 
The  cross- bill  is  a  dependency  on  the  24  Vt  181;  Riggs  v.  Armstrong,  23 
original  suit  and  can  only  be  sus-  W.  Va.  760. 

tained  on  matter  growing  out  of  it,  2  Hackley  v.  Mack,  60  Mich.  591,604 

and  so  the  affirmative  relief  sought  3  Krippendorf  v.  Hj^de,  110  U.  S.  276. 

must  be  equitable  relief.     Griffin  v.  4  17  How.  (U.  S.)  130,    145;    Conti- 

Fries,  23  Fia.  173,  2  S.  2G6.     The  cross-  nental  Life  Ins.  Co.  v.  Webb,  54  Ala. 

bill  must  be  confined  to  the  subject-  688,  691. 


§  215.]  DEFENSES — CROSS-BILLS.  291 

for  the  court  in  the  opinion  said:  "New  parties  cannot  be 
introduced  into  a  cause  b}^  a  cross-bill.  If  the  plaintiff  desires 
to  make  new  parties,  he  amends  his  bill  and  makes  them.  If 
the  interest  of  the  defendant  requires  their  presence,  he  takes 
the  objection  of  non-joinder,  and  the  complainant  is  forced  to 
amend,  or  his  bill  is  dismissed.  If,  at  the  hearing,  the  court 
find  that  an  indispensable  party  is  not  on  the  record,  it  refuses 
to  proceed.  These  remedies  cover  the  whole  subject,  and  a 
cross-bill  to  make  new  parties  is  not  only  improper  and  irreg- 
ular, but  wholly  unnecessary." 

This  doctrine  supported  by  so  able  a  jurist  and  concurred  in 
by  the  supreme  court  of  the  United  States  is  no  doubt  en- 
titled to  great  weight,  and  yet  it  is  not  difficult  to  conceive  of 
a  case  where  the  equitable  rights  of  parties  would  suffer  if  this 
rigid  rule  were  to  be  followed,  and  the  better  doctrine  and  the 
more  satisfactory  practice  would  seem  to  be  that  contended  for 
in  Brandon  Mfg.  Co.  v.  Prime,^  where  it  was  held  that  persons 
not  parties  to  the  original  bill,  when  shown  to  be  necessary  to 
the  full  settlement  of  the  controversy,  may  be  brought  in  by 
cross-bill.     The  question  arose  in  this  case  as  to  whether  the 
cross-bill  should  be  an  answer.     The  court  said :  "  A  cross-bill 
is  like  an  original  bill,  except  that  it  must  rest  on  what  is  neces- 
sary to  the  defense  of  an  original  bill.     In  an  original  bill, 
brought  by  the  orator  in  the  cross-bill  for  the  same  relief,  there 
could  be  no  fair  question  but  that  these  new  parties 
would  be  proper  parties.     In  this  original  bill,  as  it  is  framed, 
these  do  not  appear  to  be  necessary  parties,  but,  when  the  facts 
set  up  in  the  cross-bill  appear,  they  become  so.   Following  the 
ordinary  rule,  when  the  orator  in  the  cross-bill  resorts  to  it  for 
defense  and   relief,  and   makes  it  appear  that  they  are  not 
only  proper  but  necessary  parties  to  the  litigation,  that  orator 

'^  14  Blatchf.  (U.  S.)  371.  In  Stock-  nawha  Lodge,  etc.  v.  Swann,  37  W. 
ton,  etc.  Soc.  v.  Harrold,  127  Cal.  612,  Va,  176,  16  S.  E.  462,  it  was  held 
GO  Pac.  165,  it  was  held  that  if  the  that  it  would  not  be  proper  to  in- 
cause  of  action  to  which  they  are  troduce  new  parties  in  a  cross-bill 
made  parties  defendant  is  the  proper  which  is  merely  defensive  in  char- 
subject  of  a  cross-complaint,  new  acter,  but  when  affirmative  relief  is 
parties  may  be  brought  in  by  cross-  demanded,  and  the  justice  of  the 
bill.  Mackenzie  v.  Hodgkin,  126  CaL  cause  requires  it,  new  parties  may  be 
591,59Pac.36;Loughridgev.  Cawood,  introduced. 
97   Ky.   533,  31   S.  W.   125.     In  Ka- 


292  DEFENSES — CEOSS-BILLS.  [§  215. 

not  only  might,  but  ought,  to  make  tbera  parties.  If  there 
were  no  authorities  and  was  no  practice  on  the  subject,  on 
principle,  that  would  seem  to  be  the  proper  course.  .  .  . 
Opposed  to  all  this,  there  is  the  remark  of  Mr.  Justice  Curtis 
in  Shields  v.  Barrow,  and  the  reasons  given  by  him  in  support 
of  it,  to  the  effect  that  new  parties  cannot,  in  any  case,  prop- 
erly be  added  by  cross-bill,  without  citing  any  authority  for 
it,  and  books  and  cases  that  have  followed  that  remark  with- 
out citing  any  other  authority.  That  precise  question  was  not 
involved  in  that  case,  but  the  mere  dictum  of  such  a  judge  of 
such  a  court  would  ordinarily  be  followed,  especially  by  lower 
courts.  An  examination  of  his  reasoning  shows  that  he  made 
the  suggestion  without  much  examination,  probably,  and  his 
reasoning  does  not  cover  the  whole  ground  as  to  all  classes  of 
cases.  The  modes  of  procedure  he  suggests  would  probably  be 
ample  in  all  cases  of  cross-bills  brought  for  discovery  in  aid  of 
a  defense  merely  to  the  original  bill,  but  not  in  cases  of  those 
brought  for  relief  as  well  as  defense,  where  new  parties  would 
be  necessary  to  the  relief  sought.  As  in  this  case,  the  methods 
he  states  as  the  proper  ones,  if  successfully  followed,  would 
enable  the  defendant  in  the  original  bill  to  defeat  the  orator 
therein,  but  not  to  reach  the  afiirmative  relief  prayed  in  the 
cross-bill,  if  entitled  to  it.  Weighty  as  that  remark  is,  it  is 
not  thought  to  be  sufficient  to  control  the  reasons  and  author- 
ities  to  the  contrary.  The  result  of  w^hat  is  thought  to  be  the 
soundest  reasoning,  and  the  best  considered  authorities,  is  that 
where  a  cross-bill  shows  that  there  is  a  party  to  the  subject  of 
the  litigation  as  presented  by  it,  who  has  not  been  before  made 
a  party  nor  appeared  to  be  a  necessary  one,  and  then  does 
appear  to  be  such,  that  party  should  be  brought  in  by  the 
cross-bill."^ 

In  determining  this  question  it  is  important  to  notice  the 
distinction  mentioned  by  the  court  in  West  Virginia,  etc.  Co. 
V.  Vinal,^  where  a  cross-bill,  merely  defensive  in  its  character, 
and  one  seeking  relief  for  the  consideration  and  determination 
of  which  new  necessary  parties  should  be  before  the  court,  are 
distinguished.     If  the  cross-bill  be  one  merely  defensive  and 

iJonesv.  Smith,  14  111.  229;  Hilde-  made  parties  to  the  original  bill, 
brand  v.  Beasley.  7  Heisk.  (Tenn.)  121.  Odom  v.  Owens,  2  Baxt.  (Tenn.)  446. 
But  the  new  parties  are  not  hj  this        ^  14  w.  Va.  637,  681. 


§  215.]  DEFENSES — CROSS-BILLS.  293 

the  parties  sought  to  be  introduced  are  not  necessary  or  in- 
dispensable to  the  settlement  of  an  issue  that  is  germane  to  the 
case  made  by  the  original  bill,  there  could  be  no  doubt  that 
the  court  should  refuse  to  allow  such  additional  parties;  they 
would  be  as  strangers  to  the  issue.  But  if  the  cross-bill  be 
one  of  the  latter  character  it  would  seem  that  every  equitable 
principle  would  demand  its  adoption.^ 

In  Jones  v.  Smith^  the  court  say:  "Such  a  case  may  not 
often  arise,  making  it  necessary  to  bring  in  new  parties  to  a 
cross-bill;  but  when  it  does  arise,  the  well  established  and 
universally  recognized  rule  of  chancery  pleading  requires  that 
the  new  parties  shall  be  brought  in  and  allowed  to  controvert 
the  new  allegations,  and  resist  a  decree  prejudicial  to  their  in- 
terests. We  have  not  looked  for  precedents  for  a  practice  so 
imperatively  required  by  the  reason  of  the  law,  and  the  law 
itself.  It  is  not  introducing  new  and  independent  matter  into 
the  cross-bill,  and  new  parties,  for  the  purpose  of  answering 
that  new  matter,  but  it  is  presenting  new  facts  connected  with 
the  subject-matter  of  the  original  bill,  and  answering  it,  and 
new  parties  whose  interest  may  be  likewise  affected  by  the 
new  allegations.  Were  a  precedent  wanted  for  this  practice 
we  are  prepared  to  furnish  it." 

By  the  English  judicature  act  new  parties  are  allowed  to  be 
brought  in  by  counter-claim.* 

1  The  question  is  ably  discussed  in  sary  parties  to  the  cross-bill,  they 

Pollard  V.  Wellford,    99  Tenn.    114,  may  properly  be  made  such '  is  prob- 

118,  43  S.  W.  25,  where  the  motion  ably   true."     Cases    supporting    the 

was  to  strike  such  a  cross-bill  from  doctrine  contended  for  in  Shields  v. 

the  files.     Hildebrand  v.  Beasley,  7  Barrow,  17  How.  (U.  S.)  130,  are  col- 

Heisk.  (Tenn.)  121.  lected  and  commented  upon  in  vol.  V, 

2 14  111.  229,  233.    Mr.  Justice  Mont-  Notes  on  United  States  Reports,  at 

gomery,  speaking  for  the  Michigan  page  45.     Among  these  cases  are  the 

court  in  Griffin  v.  Griffin,  113  Mich,  following:  Randolph  v.  Robinson,  20 

87,  90,   adopts  the  practice   in  this  Fed.   Cas.   262,   "Holding    cross-bill 

language:    "But.     considering     the  not  admissible  which  brings  in  new 

more  recent  cases,  reinforced  by  stat-  parties."    Simmons  v.  Taylor,  38  Fed. 

utes  and  codes,  the  trend  is  towards  699;  Adelbert  College  v.  Toledo,  etc 

the  practice;  and  the  statement  that  Ry.  Co.,  47  Fed.  846;  Thurston  v.  Big, 

'  the  undoubted  weight  of  authority  etc.    Co.,   86  Fed.   485;  Richman  v. 

is  to  the  effect  that  if  a  cross-bill  is  Donnell,  53  N.  J.  Eq.  35,  30  Atl.  534. 

brought  for  relief  as  well  as  for  de-  Also  citing  83  Am.  Dec.  253  and  note, 

fense,  and  shows  that  persons  not  3  Dear  v.  Sworder,  4  Ch.  Div.  476. 
parties  to  the  original  bill  are  neces- 


294  DEFENSES — CROSS-BILLS.  [§§  216,  217. 

§  216.  Cross-bills  by  persons  not  parties  to  the  ori-!:ial 
suit.— It  is  unquestionabh^  a  settled  rule  in  equity  pleading 
that  mere  strangers  to  the  litigation  would  not  be  permitted  to 
intervene,  nor  can  they  be  made  parties  to  the  suit,  nor  could 
the  rights  of  persons,  although  they  have  an  interest  in  the 
subject-matter  of  the  litigation,  be  affected  by  the  decree  if 
they  are  not  made  parties  and  subjected  to  the  jurisdiction  of 
the  court,  and  yet  it  must  be  conceded  that  cases  might  arise 
where  persons  interested  in  the  subject-matter,  though  not 
made  parties  to  the  original  suit,  could  obtain  more  complete 
and  satisfactory  relief  by  appearing  and  answering  and  filing 
a  cross-bill  if  they  could  be  permitted  to  do  so,  than  by  an 
independent  and  original  proceeding  by  bill  of  complaint;  as 
where  one  has  an  equitable  interest  in  the  subject-matter  of 
the  litigation  which  would  be  more  or  less  affected  by  the 
original  litigation;  or  where  it  would  be  ditlicult  to  obtain 
jurisdiction  of  the  parties  who  have  already  submitted  them- 
selves to  the  jurisdiction  of  the  court  in  the  original  case:  or 
where  great  expense  and  delay  might  be  saved  by  submitting 
to  the  court  the  whole  controversy  in  the  one  litigation.  In 
such  cases  the  person  so  interested  may  petition  the  court  to 
be  allowed  to  intervene  and  be  made  a  party  defendant  in  the 
original  suit,  and,  when  admitted,  file  his  answer  and  cross-bill 
and  thus  subject  his  interests  to  the  judgment  of  the  court. 
Such  a  practice  would  certainly  aid  the  court  in  settling  the 
whole  controversy  in  one  suit,  and  this  is  one  of  the  grand 
underlying  doctrines  of  equity;  by  its  decree  it  aims  to  deter- 
mine all  the  rights,  interests  and  claims  arising  in  the  suit,  and 
to  ascertain  and  settle  all  conflicting  interests  pertaining  to 
the  subject-matter  of  the  controversy.^ 

In  Whitbech  v.  Edgar  ^  the  chancellor  said :  "  That  although 
it  was  a  general  rule  that  a  cross-bill  could  not  be  filed  by  any 
persons  except  parties  to  the  original  suit,  yet  that  a  purchaser 
pendente  lite^  from  a  party  to  the  suit,  was  a  privy,  and  might 
file  a  bill  in  the  nature  of  a  cross-bill,  to  make  himself  a  party 
to  the  suit  so  as  to  have  his  rights  protected." 

§  217.  The  frame  of  the  cross-bill.—  The  old  English  cross- 
bill was  as  nearly  an  independent  pleading  as  possible  and  be 

1  Pomeroy,  Rem.  &  Rem.  Eights,  sec  247.    '2  Barb.  Ch.  Pr.  (N.  Y.)  196. 


DEFENSES — CEOSS-BILLS.  295 


§  217.] 

an  auxiliary  proceeding  in  the  defense.  It  might  be  interposed 
by  any  one  or  more  of  the  defendants  against  any  one  or  more 
of  the  complainants  or  defendants  named  in  the  original  bill. 
It  might  be  filed  in  the  same  court  as  the  original  bill,  or  in 
any  other  court  of  equity.  "  It  seems  that  in  England,"  says 
Judge  Story  in  his  work  on  Equity  Pleading,'  "it  is  not  indis- 
pensable that  a  cross-bill  should  be  filed  in  the  same  court  in 
which  the  original  bill  is  filed;  as,  for  example,  if  the  original 
bill  has  been  brought  in  the  court  of  exchequer,  whilst  that 
court  had  equity  jurisdiction,  the  cross-bill  might  be  brought 
in  the  court  of  chancery.  Whether  the  like  doctrine  is  main- 
tainable in  the  courts  of  America  generally  may  admit  of 
question.  But,  at  all  events,  there  cannot  be  a  cross-bill  in  a 
state  court  to  an  original  bill  pending  in  a  circuit  court  of  the 
United  States.  If  any  cross-bill  is  wanted  in  such  a  case,  it 
should  be  brought  in  the  same  circuit  court  in  which  the  orig- 
inal bill  is  depending,  as  it  is  not  an  original  but  an  ancillary 

suit." 

As  to  the  frame  of  the  cross-bill  Story  further  says :  ^  "In 
regard  to  the  frame  of  a  cross-bill,  a  brief  statement  may  suffice. 
It  should  state  the  original  bill,  or  rather  the  parties,  and 
prayer,  and  objects  of  it,  the  proceedings  thereon,  and  the 
rights  of  the  party  exhibiting  the  bill,  which  are  necessary  to 
be  made  the  subject  of  cross  litigation,  or  the  ground  on  which 
he  resists  the  claim  of  the  plaintiff  in  the  original  bill,  if  that 
is  the  object  of  the  new  bill.  A  cross-bill  should  not  introduce 
new  and  distinct  matters  not  embraced  in  the  original  suit; 
for,  as  to  such  matters,  it  is  an  original  bill,  and  they  cannot 
properly  be  examined  at  the  hearing  of  the  first  suit." 

The  frame  of  this  bill  has  undergone  some  changes  brought 
about  by  the  tendency  in  these  modern  days  to  simplify 
pleadings  by  ridding  them  of  too  much  verbiage  and  unneces- 
sary prolixity.  In  drafting  such  a  bill  the  pleader  must  keep 
in  mind  (1)  that  it  is  auxiliary  to  the  defense  sought  to  be  made 
to  the  original  bill;  (2)  that  it  is  filed  to  more  fully  exemplify 
his  defense  and  to  obtain  aflirmative  relief;  (3)  that  the  relief 
sought  and  the  claims  set  up  must  be  strictly  in  the  nature  of 
a  defense  to  the  bill  and  legitimately  connected  with  the  claim 
of  the  bill. 

1  Story,  Eq.  PI.,  sec.  400.     2  Story,  Eq.  PL,  sec.  401. 


296  DEFENSES — CROSS-BILLS.  [§  218. 

In  Neal  v.  Foster'^  the  court  discusses  the  requisites  of  the 
former  English  cross-bill,  and  then  adds,  "but  this  practice 
never  obtained  in  this  country.  In  the  national  courts  at 
least  the  cross-bill  must,  from  the  necessity  of  the  case,  be  filed 
in  the  circuit  court  where  the  original  bill  is  depending.  In 
such  case  there  is  no  necessity  of  bringing  the  facts  of  the 
original  bill,  or  its  object  or  prayer,  to  the  attention  or  knowl- 
edge of  the  court  by  repeating  them  in  the  cross-bill,  and  a 
mere  reference  to  the  bill,  which  is  already  before  the  court, 
and  a  part  of  the  case,  is  sufficient  for  all  practical  purposes. 
Of  course  it  is  necessary  to  set  forth  in  the  cross-bill  so  much 
of  the  matter  in  the  original  bill,  and  the  subsequent  pleadings 
and  proceedings  thereon,  as  may  be  necessary  to  show  what 
right  or  defense  is  sought  to  be  brought  before  the  court  for 
adjudication  and  to  make  a  proper  case  therefor.  ...  A 
cross-bill  is  generally  considered  and  used  as  a  matter  of  de- 
fense and  may  answer  the  purpose  of  a  pleaj?wi«  darrein  con- 
tinuance, where  the  matter  of  the  defense  arises  after  answer. 
A  cross-bill  is  either  brought  against  the  plaintiff  in  the  origi- 
nal bill,  or  one  or  more  of  the  defendants  therein,  and  the 
orio-inal  and  cross-bill  are  considered  one  cause."-  And  it 
may  be  generally  said  that  the  same  rule  as  to  requisites  of  a 
cross-bill  obtains  in  the  several  states  of  the  Union.* 

§  218,  Same  subject  — Substance  or  body  of  the  bill.— The 
cross-bill  is  filed  with  the  answer  of  the  defendant  or  after  the 
answer  has  been  filed,  and,  as  we  have  seen,  is  instituted  for 
the  purpose  of  obtaining  affirmative  relief  to  the  defendant,  or 
defendants,  resorting  to  it.  It  would  therefore  follow  that  the 
cross-bill  is  not  filed  for  the  purpose  of  stating  the  defense  to 
the  original  bill,  but  rather  for  the  purpose  of  alleging  such 
material  facts  as  will  warrant  the  court  in  granting  the  relief 
prayed  for;  therefore,  in  the  substance  or  body  of  the  bill,  the 
defendant  states,  in  a  concise  and  logical  form,  each  allegation 
of  fact  upon  which  he  depends  and  founds  his  prayer  for  relief. 
These  allegations,  like  the  allegations  of  an  original  bill,  must 
make  out  an  equitable  case,  and  must  contain  subject-matter 
that  could  not  be  taken  advantage  of  by  an  answer.    The  sub- 

1  34  Fed.  496.  Cross  v.  De  Valle,  1  Wall  (U.  &)  14; 

2  Adams'    Equity,    402;    Field    v.     Story,  Eq.  PI.,  sees.  389,  39a 
Schieffelin,  7  Johns.  Ch.  (N.  Y.)  252;        3  Cable  v.  Ellis,  120  III.  136. 


§  219.]  DEFENSES — CROSS-BILIiS.  297 

ject-matter  of  the  bill,  however,  must  be  germane  to  the  case 
made  in  the  original  bill.* 

§  219.  Samesiibject  —  The  prayer  of  the  bill. —  The  prayer 
of  the  cross-bill  is  not  unlike  the  prayer  to  an  original  bill.  It 
should  ask  the  court  for  the  particular  affirmative  relief  sought 
by  the  party  filing  it,  and  may  contain  not  only  a  special  prayer 
for  relief,  but  a  general  prayer;  ^  and  generally  a  prayer  that 
the  cross-bill  be  heard  at  the  same  time  the  original  bill  is 
heard.  It  would  seem,  however,  that  it  would  not  be  neces- 
sary to  pray  for  process  to  bring  the  parties  defendant  to  the 
cross-bill  into  court,  for  they  are  already  in  the  court,  unless 
it  be  a  new  party,  in  which  case  a  prayer  for  process  would  be 
necessary;  or  where  an  injunction  has  been  prayed  and  granted, 
in  such  case  it  would  be  necessary  that  service  of  the  writ  of 
injunction  be  made  upon  the  parties  defendants  in  the  bill.  It 
has  been  held,  however,  "that  no  person  is  technically  a  party 
to  the  bill  unless  there  is  a  prayer  for  process." 

Although  the  question  is  not  satisfactorily  and  harmoniously 
settled  by  the  authorities,  it  seems  that  the  rule  exists  that  if 
there  is  no  statute  making  it  unnecessary  to  issue  process  upon 
the  filing  of  the  cross-bill  to  bring  in  the  defendants,  it  ought 
to  be  issued. 

In  Thoniason  v.  Neeley^  the  court  say:  "The  existing  stat- 
ute allows  the  answer  to  be  made  a  cross-bill  against  the  com- 
plainant and  co-defendants,  or  all  of  thera,  but  returns  to  the 
practice  which  always  prevailed  in  the  chancery  court,  that 
the  defendants  thereto  must  be  served  with  the  same  process 
used  to  compel  the  appearance  of  defendants  to  the  original 
bill."  In  Washington  Ry.  V.  Bradley s^  \\iQ  co\\x\j  ^ixi^'.  "Par- 
ties defendants  are  as  necessary  to  cross-bills  as  to  original 
bills,  and  their  appearance  in  both  cases  is  enforced  by  process 
in  the  same  manner."  In  Rail  Lumber  Co.  v.  Gustin^  the 
<}ourt  held  that  a  notice  of  lis  pendens  filed  in  this  case,  but 

1  Andrews  v.  Kibbee,  12  Mich.  94;  v.  Van  Cortlandt,  2  Johns.  Ch.  (N.  Y.) 
Hackley  v.  Mack,  60  Mich.  594,  27  N.  243.  In  Kennedy  v.  Kennedy  et  al., 
W.  871;  Fleece  v.  Russell,  13  111.  31;  66  111.  190,  194,  a  new  party  was 
Goff  V.  Kelly,  74  Fed.  827.  brought  into  the  case.     Talmage  v. 

2  Harrison  v.  Brewster,  38  W.  Va,  Pell,  9  Paige  Ch.  (N.  Y.)  410. 
294;  Cox  v.  Leviston,  63  N.  H.  283;        3  50  Miss.  310. 

Cooley  V.  Harris,  92  Mich.  126;  Clark        <  10  Wall.  (U.  S.)  299,  302. 
V.  Clark,  62  N.  H.  267;  Brasher's  Ex'rs        »  54  Mich.  625. 


298  DEFENSES — CROSS-BILLS.  [§  220. 

not  in  a  cross-suit,  wiis  constructive  notice  to  all  the  defend- 
ants because  the  suit  and  the  cross-suit  constituted  one  cause. 
In  Treiher  v.  Shafer  '  Judge  Dillon  said:  •'  In  such  case,  aside 
from  statutory  regulations,  the  bill  and  cross-bill  make  but  one 
cause.  .  .  .  It  is  a  fair  deduction  alike  from  these  author- 
ities, and  from  the  nature  of  the  proceeding  itself,  that  such  a 
cross-bill  as  the  one  under  consideration  cannot  justly  be  re- 
garded as  in  the  nature  of  an  original  suit,  in  such  a  sense 
that  the  statutory  process,  or  notice,  must  necessarily  be  issued 
and  served  upon  the  plaintiffs  in  the  same  manner  as  the  orig- 
inal bill.  The  notice  formerly  required  on  cross-bills  was,  as 
we  infer  from  the  authorities,  a  matter  wholly  regulated  bv 
the  practice  of  the  court.  .  .  .  And  for  this  we  have  the 
express  authority  of  Lube,  who  says  '  the  defendant  to  a  cross- 
bill being  already  in  court  by  the  original  bill,  service  of 
process  on  his  clerk  in  court  is  good  service.'  "  To  conform 
with  the  practice  generally  existing  in  this  country  it  would 
seem  that  the  bill  having  been  filed,  a  copy  thereof  should  be 
served  on  the  solicitor  for  complainant  in  the  original  cause. 

§220.  Same  subject —  Signing  and  verifying  the  bill 

The  same  rule  would  obtain  in  the  matter  of  a  cross-bill  as  to 
signing  and  swearing  to  the  same  as  applies  to  an  original 
bill.  The  cross-bill  should  be  signed  by  the  party  complainant 
or  complainants  in  the  bill  and  by  the  solicitor  and  counsel 
for  the  complainants.  If  the  bill  need  not  necessarily  be  veri- 
fied, and  is  not  verified,  the  solicitor  may  sign  for  the  com- 
plainant. A  cross-bill  may,  however,  pray  for  preliminary 
and  immediate  relief  by  way  of  obtaining  injunction  or  a  re- 
ceiver, in  which  case,  as  in  original  bills,  it  would  be  necessary 
that  the  bill  should  be  verified  by  the  complainants,* 

1 18  Iowa,  29.  title  the  complainants  therein  to  a 

^Talmage  v.   Pell  et  al.  9  Paige,  stay  of  proceedings  in  the  original 

410,  where  it  was  held  that  all  com-  suit  was  sustained  where  the  mat- 

plainants  in  a  cross-bill  must  join  in  ters  were  stated  in  the  bill  on  mere 

an  application  to  stay  proceedings  information  and  belief,  and  no  affi- 

in  the  original  suit,  and  that  to  en-  davit  was  procured  of  the  person 

title  complainants  to  such  an  order  who  gave   the   information   stating 

the  cross-bill  must  be  sworn  to  by  that  the    allegations   therein   were 

persons  knowing  the  facts.     An  ob-  founded  in  fact.    Van  Valtenburg  v. 

jection  that  the   cross-bill  was  not  Alberry,  10  Iowa.  264. 
sworn  to  in  such  a  manner  as  to  en- 


§  221.] 


DEFENSES — CROSS-BILLS. 


299 


§  221.  Same  subject  —  Filing  the  Mil.— The  bill  should  be 
filed  in  the  court  where  the  original  bill  is  pending.  It  was 
formerly  a  rule  that  the  cross-bill  must  be  filed  before  publi- 
cation of  the  testimony,  which  was  at  that  time  taken  by  a 
master  and  generally  in  private.  The  reasons  for  that  rule 
no  longer  exist.^  A  rule,  however,  obtains  in  some  jurisdic- 
tions that  the  cross-bill  must  be  filed  at  the  time  of  answering 
the  original  bill,  but  it  cannot  be  said  that  there  is  any  fixed 
settled  rule  as  to  when  the  cross-bill  should  be  filed,  for  it  seems 
that  it  is  largely  in  the  discretion  of  the  court;  for  if,  even  at 
the  hearing  of  the  cause,  it  should  appear  that  a  cross-bill  should 
be  filed  to  give  to  a  defendant  or  some  of  the  defendants 


1  In  Field  v.  Schieffelin,  7  Johns. 
Ch.  253,  254,  Chancellor  Kent,  in  dis- 
cussing this,  said:  "It  is  too  late, 
after  publication,  to  introduce  new 
and  further  testimony  to  the  matter 
in  issue  by  the  contrivance  of  the 
cross-bill.  It  would  be  doing,  in 
an  indirect  way,  per  ohliquum.  what 
is  forbidden  to  be  done  directly." 
Hamersley  v.  Lambert,  2  Johna  Ch. 
43-^.  In  Xeal  v.  Foster,  34  Fed.  496, 
499,  the  court,  referring  to  the  rule 
laid  down  by  Chancellor  Kent,  said: 
"But  the  fact  on  which  this  artificial 
superstructure  of  caution  and  pre- 
vention is  raised  lias  long  since 
ceased  to  exist  in  the  courts  of  the 
United  Statea  At  one  time  all  testi- 
mony taken  in  a  suit  in  equity  was 
taken  by  examiners  or  commission- 
ers on  written  interrogatories,  and 
neither  the  parties  nor  their  attorneys 
were  allowed  to  be  present  at  the 
examination,  while  the  persons  be- 
fore whom  the  testimony  was  taken 
were  sworn  to  secrecy.  The  testi- 
mony was  then  returned  into  court 
sealed  up,  and  remained  so  until  the 
taking  of  testimony  in  the  case  was 
closed,  when  an  order  of  publication 
was  passed,  and  the  depositions  were 
opened.  Now,  howe^'cr,  under  Equity 
Rule  67,  the  testimony  may  be  taken 
orally    before    an   examiner   in   the 


presence  of  the  parties  and  their  at- 
torneys who  propound  the  interrog- 
atories, and,  when  taken  on  commis- 
sion and  written  interrogatories,  the 
depositions  may  be  and  usually  are 
opened  and  inspected  as  soon  as  re- 
turned to  the  clerk's  office.  In  other 
words,  there  is  no  longer  any  secrecy 
in  the  premises,  and  there  is  now  no 
reason  why  the  period  or  fact  of 
publication  should  be  arbitrarily 
prescribed  as  the  point  of  time  be- 
yond which  a  cross-bill  cannot  be 
filed.  The  court  may,  »ua  sponte, 
direct  the  filing  of  a  cross-bill  when 
it  appears  necessary  to  a  complete 
determination  of  the  case  at  any 
time  before  final  decree;  and,  in  my 
judgment,  there  ought  to  be  no  fixed 
rule  against  a  defendant's  filing  a 
cross- bill  in  a  proper  case  before  the 
final  hearing;  the  objection  of  laches 
being  disposed  of  in  each  case  on  the 
particular  circumstances  thereof,  or 
by  rule  of  court  or  the  supreme 
court."  In  Burford  v.  Kersey,  48 
Misa  642,  650,  it  was  held  that  "  the 
court  itself  would  sometimes  at  the 
hearing,  in  its  discretion,  direct  a 
cross-bill  to  be  filed  when  it  was 
necessary  to  bring  before  the  court 
the  rights  of  the  parties,  and  the 
matters  necessary  to  a  just  deter- 
mination." 


300  DEFENSES — CROSS-BILLS.  [§  222. 

affirmative  relief,  or  when  it  appears  necessary  to  a  complete 
determination  of  the  case,  the  court  would  grant  leave  to  file 
it.  And  it  might  appear  sufficiently  necessary  that  such  a  bill 
should  be  filed  in  order  to  determine  the  whole  controversy 
between  the  parties,  when  the  court  upon  its  own  motion  would 
order  it  filed.  And  there  have  been  cases  where  the  court  has 
allowed  a  cross-bill  to  be  filed  even  after  a  decree;^  the  usual 
and  proper  practice,  however,  is  to  file  the  cross-bill  at  tlie 
time  of  filing  the  answer,  unless  it  be  a  bill  against  a  co-defend- 
ant, in  which  case  it  would  be  necessary  to  wait  until  his  an- 
swer was  filed,  as  up  to  that  time  neither  defendant  could  know 
what  defense  the  other  would  set  up.^ 

§  222.  Leave  to  file. —  The  authorities  can  hardly  be  said 
to  be  harmonious  as  to  this  question.  It  is  held  by  some  of 
the  courts  that  a  cross-bill  cannot  be  filed  without  leave  of  the 
court  first  obtained,  while  other  courts  have  held  that  the  fil- 
ing of  a  cross- bill  is  a  matter  of  right,  and  that  the  party  com- 
plainant in  the  cross-bill  may  file  it  without  leave  of  court. 
It  would  seem,  however,  that  the  authorities  might  find  har- 
mony in  the  practice  that  a  cross-bill  may,  as  a  matter  of  right, 
be  filed  when  it  is  within  the  time  usually  allowed  defendants 
to  file  cross-bills,  and  when  it  does  not  undertake  to  bring 
about  an  unusual  proceeding. 

In  JVeal  v.  Foster^  the  court  say:  "  A  cross-bill  is  a  regular 
and  legitimate  proceeding  in  a  court  of  equity,  to  which  any 
party  defendant  may  resort  in  a  proper  case,  without  any 
special  leave  of  the  court,  but  in  doing  so  he  must  conform  to  the 
law  or  rule  which  governs  the  case,  or  take  the  consequence." 

1  Gould  V.Stanton,  17  Conn.  377.  to  postpone  the  hearing  of  the  cause 

In  Chicago,  etc.  v.  Connecticut  Mut-  or  to  delay  the  proceedings  for  the 

ual  Ins.  Co.,  57  III  -427,  433,  a  cross-  purpose  of  filing  the  cross-bill,  did 

bill  was  permitted  to  be  filed  after  a  not  apply  in  this  case.     The   court 

decree,  where  the  purpose  of  the  bill  said:    "In  a  case  so  circumstanced 

was  not  to  open  tlie  decree  nor  to  as  the  one  before  us,  it  ought  never 

disturb  proceeding-;  which  had  been  to  be  too  late  to  file  such  a  cross-bill, 

had  in  the  suit,  but  to  set  aside  a  so  long  as  the  court  has  control  of 

sale   of  property;  the   court  saying  the  cause.*' 

that  the  rules  of  practice  as  to  the  2  iwing  v.  De  Kay,  10  Paige.  319; 

proper  time  of  filing  a  cross-bill  being  Vanderveers  v.  Holcomb,  21  N.  J.  Eq. 

sucli  as  would  entitle  it  to  be  heard  105. 

with  the  original  bill,  and  that  the  s  34  Fed.  496,  498. 
<lefendant  would  not  be   permitted 


§  223.]  DEFENSES — CROSS-BILLS.  301 

In  Quick  v.  Lemon^  the  court,  after  citing  several  cases 
where  the  court  had  held  that  the  cross-bill  might  be  filed 
without  obtaining  leave  of  the  court,  say:  "The  doctrine 
may,  therefore,  be  regarded  as  well  settled  that  where  a  de- 
fendant has  equities  arising  out  of  the  subject-matter  of  the 
original  suit  which  entitles  him  to  affirmative  relief,  it  would 
be  error  for  the  circuit  court  to  refuse  to  permit  a  cross-bill  to 
be  filed."  If,  however,  there  has  been  delay  and  laches  upon 
the  part  of  the  defendant  desiring  to  file  the  cross-bill,  the 
court  might  reasonably  refuse  to  entertain  such  a  bill. 

In  Baker  v.  Oil  Track  Co?  the  court  denied  an  application 
to  file  a  cross-bill  on  the  ground  that  the  delay  was  unreason- 
able. 

§  223.  Answer  in  the  nature  of  a  cross-bill. —  In  several 
of  the  states  an  answer  in  the  nature  of  a  cross-bill  is  per- 
mitted by  statutes  and  rules  of  practice,  but  where  this  prac- 
tice obtains  the  parties  are  not  deprived  of  the  right  to  file  a 
cross-bill,  and  it  may  be  necessary,  especially  when  it  is  neces- 
sary to  bring  in  new  parties  to  the  litigation  or  to  implead  as 
defendants  in  the  cross-bill  some  of  the  defendants  in  the  orig- 
inal bill;  for  as  a  general  rule,  where  this  practice  is  permitted, 
the  answer  in  the  nature  of  a  cross- bill  can  only  be  directed 
against  the  complainant  in  the  original  bill.' 

1105  111.  578,  585;  Davis  v.  Ameri-  decree,  it  is  a  cross-bill  for  all  sub- 
can,  etc.  Union,  100  111.  313.  In  stantial  purposes.  Marr  v.  Lewis,  31 
Beaucharap  v.  Putnam.  34  III.  378,  it  Ark.  203,  25  Am.  Rep.  553. 
was  held  that  "tlie  filing  of  a  cross-  In  Alabama  this  is  regulated  by 
bill  was  a  matter  of  right  and  requires  statute.  (Code,  sees.  3801-4.)  The 
no  leave;  but  it  does  not  necessarily  answer  may  be  treated  as  a  cross- 
stay  the  hearing  of  the  original  bill  against  complainant  in  the  orig- 
cause."  In  Bronson  v.  Railway  Co.,  inal  bill  but  not  against  defendants. 
2  Wall.  (U.  S.)  283,  it  was  held  that  Lehman,  etc.  v.  Dozier,  78  Ala.  235. 
filing  a  cross-bill  on  a  petition  with-  But  this  applies  only  when  relief  is 
out  the  leave  of  the  court  is  an  irreg-  sought  against  the  complainant  in 
ularity,  and  such  cross-bill  may  be  the  original  bill  and  not  against  a 
set  aside.  co-defendant.     Gil  man,  etc.  v.  New 

27  W.  Va.  454;  Rogers  v.  Riessner,  Orleans,  etc.  Ry.  Ass'n,  72  Ala.  566. 

31  Fed.  591.  In   Kentucky,    Biackerby   v.  Hol- 

3  The  court,  in  Allen  v.  Allen,  14  ton,   5   Dana,   520,   5'M;   Madison   v. 

Ark.  667,  held  that  when  the  defend-  Wallace,  32  Ky.  (2  Dana),  6L 

ant  in  his  answer  sets  forth  a  com-  In   Michigan,    Ciiancery  Rule  123 

plaint  against  the   plaintiff   which  permits  an  answer  in  the  nature  of  a 

calls  for  an  answer  and  prays  for  a  cross-bill.    Hackley  v.  Mack,  60  Mich. 


302 


DEFENSES — CROSS-BILLS. 


[§  223. 


In  an  answer  of  this  nature  the  allegations  upon  which  the 
prayer  for  affirmative  relief  is  based  should  be  grouped  by 
themselves  and  so  arranged  as  to  give  to  the  court  and  the 
opposite  party  a  consecutive  narration  of  the  facts  claimed; 
these  allegations  are  generally  introduced  by  a  clause  or  state- 
ment in  the  following  language:  "This  defendant,  further 
answering  in  the  nature  of  a  cross-bill,  says;"  then  number- 
ing each  paragraph  of  this  part  of  the  answer  as  if  it  were  a 
bill  of  complaint.  It  is  not  permitted,  however,  in  the  federal 
courts  to  obtain  affirmative  relief  by  an  answer  in  the  nature 
of  a  cross-bill.  The  statutes  and  rules  of  practice  of  the  several 
states  governing  the  practice  in  equity  courts  does  not  obtain 
in  the  federal  courts,  and  so  in  the  federal  courts  matters  which 
ordinarily  require  a  cross-bill  must  be  pleaded  by  a  cross-bill.^ 

Where  a  defendant  in  a  case  commenced  in  the  state  court, 
where  the  chancery  rules  of  the  state  court  provided  that  the 


591.  In  Coach  v.  Circuit  Judge,  97 
Mich.  563, the  court  say:  "Chancery- 
Rule  123  was  intended  to  supplant 
the  practice  of  filing  a  formal  cross- 
bill by  a  simpler  method." 

In  New  Hampshire,  in  the  case  of 
Clark  V.  Clark.  63  N.  H.  -267,  tlie  court 
held  the  defendant  might  have  af- 
firmative relief  upon  an  answer  in 
the  nature  of  a  cross-bill.  Cox  v. 
Leviston,  63  N.  H.  283; 

In  West  Virginia,  see  Leonard  v. 
Smith,  34  W.  Va,  442. 

In  Goflf  V.  Price,  42  W.  Va.  384,  26 
S.  E.  287,  the  court  held  that  an  an- 
swer under  the  Code.  ch.  125,  sec.  35, 
setting  up  new  matter  for  affirma- 
tive relief,  must  state  the  new  mat- 
ter with  as  much  particularity  and 
certainty  as  though  it  were  a  formal 
cross-bill,  and  that  it  is  necessary  to 
name  persons  interested  and  make 
them  parties,  and  call  for  a  process 
against  them,  and  contain  prayer  for 
relief. 

In  Young  v.  Twigg,  27  Md.  620,  it 
was  said  that  crossbills  are  not  en- 
couraged in  equity  practice  where  it 
is  possible  that  the  answer  may  be 


viewed  in  the  light  of  a  cross-bill 
and  the  same  purpose  attained  be- 
tween the  parties  to  the  original  suit. 

In  Tennessee  in  Nichol  v.  Nichol, 
63  Tenn.  (4  Baxt.)  145,  it  was  held 
that  the  statute  allowing  an  answer 
to  be  filed  as  a  cross-bill  is  not  lim- 
ited lo  matters  merely  defensive,  but 
puts  it  on  the  same  footing  as  a 
cross-bill. 

In  Elliston  v,  Morrison,  3  Tenn.  Ch. 
280,  where  the  answer  filed  as  a 
cross-bill  was  merely  defensive,  it 
was  held  that  it  would  be  dismissed 
with  the  original  bill.  Passumpsic 
Savings  Bank  v.  First  Nat.  Bank, 
53  Vt.  82. 

iWiiite  V.  Bower,  48  Fed.  1S6, 
where  it  was  held  that  procedure  in 
the  United  States  equity  courts  is 
not  affected  by  the  laws  of  the  state 
where  the  court  is  held,  and  that, 
therefore,  a  defendant  cannot  obtain 
affirmative  relief  by  an  answer  in 
the  nature  of  a  cross-bill;  that  under 
Equity  Rule  90  affirmative  relief 
must  be  sought  by  a  cross-bill  as  in 
the  English  high  court  of  chancery. 
Brande  v.  Gilchrist,  18  Fed.  465. 


§  224,]  DEFENSES — CROSS-BILLS. 


303 


defendant  might  obtain  affirmative  relief  by  an  answer  and  an 
answer  in  the  nature  of  a  cross-bill,  to  the  same  extent  that 
relief  may  be  granted  on  a  cross-bill  upon  the  removal  of  the 
cause  to  the  federal  court  after  such  an  answer  had  been  filed, 
it  was  held  that  he  need  not  reframe  his  pleadings  to  conform 
to  the  federal  equity  rules  by  filing  a  cross-bill  setting  up  the 
same  facts  and  praying  for  relief  thereof.     The  court,  after 
reciting  that  an  answer  of  this  nature  was  proper  under  the 
rules  and  practice  of  the  state  court  where  it  had  been  filed, 
said:  "No  summons  or  subpoena  is  issued  on  this  answer  in 
the  nature  of  a  cross-bill,  but  the  complainant  is  required  to 
answer  or  demur  to  the  same  without  further  process.     When 
this  cause  was  removed  from  the  state  court,  therefore,  the 
complainant  was  in  court,  both  on  the  bill  and  the  cross-bill. 
The  issues  as  to  the   bill  and  answer  were  made  up,  and  the 
complainant  was  in  default  as  to  the  cross-bill.     We  do  not 
think  that  the  equity  rules  of  the  federal  courts  require  a  re- 
framing  of  the  pleadings  to  conform  to  the  practice  that  must 
have   obtained  had   the   suit   been   originally    brought   here. 
After  an  equity  suit  is  brought  in  the  United  States  court, 
subsequent  proceeding  are  of  course  governed  by  the  federal 
equity  rules,  but,  on  removal,  the  rights  of  parties  are  exactly 
the  same  as  when  the  case  was  taken  from  the  state  court,  and 
are  not  to  be  changed  except  so  far  as  is  required  by  the  fact 
that  the  equity  and  law  jurisdictions  of  the  federal  courts  are 
entirely  distinct."  ^ 

§  224.  Process,  when  necessary.— What  has  been  said  un- 
der prayer  of  the  cross-bill  ^  is  somewhat  applicable  here.  In 
the  federal  court  the  usual  process  of  subpoena  to  appear  and 
answer  the  cross-bill  is  necessary  and  it  must  be  served  on  the 
defendants  in  the  cross-bill. 

In  Lowenstein  v.  GUdewelP  the  court  say:  "According  to 
the  established  practice  in  equity,  the  service  of  a  subpcen^on 
the  defendants  in  the  cross-bill,  although  they  are  parties  in 
the  original  bill,  and  in  court  for  all  the  purposes  of  the  orig- 

^  City  of  Detroit  v.   Detroit   City  Sebring,  id.  472;  Dunn  v.  Clarke   8 
Ry.  Co..  55  Fed.  569.  Pet.  1;  and  for  application  of  anal- 
,  ^"'f:  §  ^^^'  ogous  principles  to  parties  to  cross- 
's Dill  (U.  S.)  325,  327;  Eckert  v.  bills,  see  Schenck  v.  Peay,  1  Woolw 
Bauert,  4  Wash.  (U.  S.)  370;  Ward  v.  (U.  S.)  175. 


304:  DEFENSES — CROSS-BILLS.  [§  224. 

inal  bill,  is  necessary  to  bring  them  into  court  on  the  cross- 
bill, unless  they  voluntarily  enter  their  appearance  thereto, 
which  is  the  usual  practice.  And  the  general  chancery  rule 
is,  that  service  of  the  subpoena  in  chancery  to  answer  a  cross- 
bill cannot  be  made  upon  the  solicitor  of  the  plaintiff  in  the 
original  bill. 

In  the  chancery  practice  of  the  circuit  courts  of  the  United 
States  there  are  two  exceptions  to  this  rule:  (1)  in  case  of  in- 
junctions to  stay  proceedings  at  law,  and  (2)  in  cross-suits  in 
equity,  where  the  plaintiff  at  law  in  the  first  and  the  plaintiff 
in  equity  in  the  second  case  reside  beyond  the  jurisdiction  of 
the  court.  In  these  cases,  to  prevent  a  failure  of  justice,  the 
court  will  order  service  of  the  subpa-na  to  be  made  upon  the 
attorney  of  the  plaintiff  in  the  suit  at  law  in  the  one  case,  and 
upon  his  solicitor  in  the  suit  in  equity  in  the  other. 

It  not  infrequently  occurs  that  the  facts  constituting  defend- 
ant's defenses  to  an  action  or  judgment  at  law  are  of  a  charac- 
ter solely  cognizable  in  equity;  and  in  suits  in  equity  it  often 
happens  that  the  defendant  can  only  avail  himself  fully  and 
successfully  of  his  defense  to  the  action  through  the  medium 
of  a  cross-bill.  In  suits  in  these  courts  the  plaintiff  is  usually 
a  citizen  of  another  state,  and  hence  beyond  the  jurisdiction 
of  the  court,  and  in  such  cases  defendants  who  desire  to  enjoin 
proceedings  at  law,  and  defendants  in  equity  cases  who  desire 
to  defend  by  means  of  a  cross-bill,  would,  but  for  this  rule  of 
practice,  be  practically  cut  off  from  their  defenses  by  reason  of 
their  inability  to  make  service  on  the  plaintiff  in  the  action. 
It  would  be  in  the  highest  degree  unjust  and  oppressive  to 
permit  a  non-resident  plaintiff  to  invoke  the  jurisdiction  of  the 
court  in  his  favor,  and  obtain  and  retain,  as  the  fruits  of  that 
jurisdiction,  a  judgment  or  decree  to  which  he  was  not  in 
equity  entitled,  by  remaining  beyond  the  jurisdiction  of  the 
court  whose  jurisdiction  on  the  very  subject-matter,  and  against 
the  very  party,  he  had  himself  first  invoked.  The  reason  of 
the  rule  would  seem  to  limit  it  in  equity  cases  to  cross-bills 
either  wholly  or  partially  defensive  in  their  character,  and  to 
deny  its  application  to  cross-bills  setting  up  facts  not  alleged 
in  the  original  bill,  and  which  new  facts,  though  they  relate, 
as  they  must,  to  the  subject-matter  of  the  original  bill,  are 
made  the  basis  for  the  affirmative  relief  asked." 


§  225.]  DEFENSES   TO   CROSS-BILL,  305 

But  where  an  answer  in  the  nature  of  a  cross-bill  is  permitted, 
process  is  not  necessary,  for  the  parties  are  already  in  court, 
and  will  be  required  to  meet  the  answer  in  the  nature  of  a 
cross-bill  as  required  by  the  practice  of  the  court.  In  some 
jurisdictions  it  is  the  practice  to  take  a  rule  on  defendants 
named  in  the  cross-bill  who  are  parties  to  the  original  bill,  re- 
quiring them  to  plead,  answer  or  demur  by  a  day  named;  this 
rule  or  order  may  be  served  upon  them;  and  if  persons  not 
parties  are  made  defendants  to  the  cross-bill,  summons  must  be 
issued,  or  notice  published,  the  same  as  though  it  were  an  orig- 
inal bill.i 

§  225.  Defenses  to  the  cross-bill. —  Defenses  to  a  cross-bill 
are  quite  like  defenses  to  the  original  bill;  they  are  by  (1)  de- 
murrer, (2)  plea,  (3)  answer. 

(1)  By  demnrrer.  If  the  relief  sought  by  the  cross-bill  is 
not  equitable  relief,  the  court  would  have  no  jurisdiction  to 
grant  it,  and  the  bill  would  be  subject  to  a  demurrer.^  Or 
where  the  allegations  of  the  cross-bill  are  not  germane  to  the 
case  made  in  the  cross-bill;  ^  or,  if  the  rules  and  practice  of  the 
court  will  not  permit  the  cross-bill  to  be  filed  in  the  particular 
case;  or,  wiiere  the  matters  sot  up  in  the  cross-bill  are  purely 
defensive  and  might  be  taken  advantage  of  by  answer,  the  bill 
will  be  demurrable;  or  where  the  allegations  of  the  cross-bill 
are  inconsistent  with  or  contradict  the  allegations  of  the  an- 
swer. And  where  there  was  no  adequate  averments  in  the 
cross-bill  to  show  title  in  the  defendants  to  the  subject-matter 
of  the  case,  it  was  held  that  this  defect  should  have  been  taken 
advantage  of  by  demurrer.* 

1  Fleece  v.  Russell,  13  111.  31;  Mich-  2  1  Story,  Eq.  PL,  sees.  632,  G33.  In 
ael  V.  Mace,  137  111.  485,  27  N.  E.  694.  Jacksou  v.  Simmons,  39  C.  C.  A.  514, 
In  Kingsbury  v.  Buckner,  134  U.  S.  651,  98  Fed.  767,  it  was  held  that  a  cross- 
it  was  held  that  no  service  of  process  bill  which  seeks  affirmative  relief  is 
is  necessary  upon  the  plaintiff  in  the  in  the  nature  of  an  original  bill; 
original  bill  who  is  an  infant.  In  that  it  does  not  fail  with  the  dis- 
Hall  Lumber  Co.  v.  Gustin,  54  Mich,  missal  of  an  original  bill,  and  there- 
624,  it  was  held  that  the  cross-suit  is  fore,  although  relating  to  a  subject 
inseparable  from  the  original;  that  germane  to  the  matter  of  the  original 
both  constitute  one  cause,  and  any  bill,  it  must  rest  upon  grounds  of 
one  chargeable  with  notice  of  the  equitable  jurisdiction  that  are  in- 
sult is  chargeable  with  notice  of  the  cumbent  and  recognized, 
cross-bill.  Fidelity  Trust,  etc.  Co.  v.  » Story,  Eq.  PI,,  sec.  629. 
Mobile,  etc.  Ry,  Co.,  53  Fed.  850,  *Greenwaltv,Duncan,16Fed.35,37. 
20 


30G  DEFENSES   TO   CROSS-BILL.  [§  225. 

In  Bech  v.  Beck^  the  court  say:  "There  can  be  no  doubt,  I 
think,  that  a  cross-bill  which  merely  sets  up  matter  which  the 
defendant  may  make  equally  available  and  effectual  as  a  de- 
fense by  answer  is  demurrable,  for  in  such  case  the  cross-bill 
is  not  only  unnecessary  but  useless.  The  only  purpose  it  could 
serve  in  such  case  would  be  to  incumber  the  record  and  add  to 
the  expense  of  the  litigation.  And  it  is  also  well  settled  that 
a  defendant  can  only  use  a  cross-bill  against  a  complainant  :is 
a  means  of  defense.  It  must,  therefore,  be  confined  to  the 
matter  put  in  litigation  by  the  original  bill,  and  cannot  be 
used  by  a  defendant  as  a  means  of  obtaining  relief  against 
the  complainant  in  respect  to  a  cause  of  action  distinct  fi-om 
and  wholly  unconnected  with  the  complainant's  cause  of  ac- 
tion." But  a  demurrer  for  want  of  equity  will  not  lie  to  a 
cross-bill  for  the  reason  that  the  defendant  is  entitled  to  rely 
upon  the  jurisdiction  conferred  by  the  allegations  of  the  origi- 
nal bill,  the  cross-bill  being  simply  a  means  of  defense.  "  For, 
being  drawn  into  the  court  by  the  plaintiff  in  the  original  bill, 
he  may  avail  himself  of  the  assistance  of  the  court,  without 
being  put  to  show  a  ground  of  equity  to  support  its  jurisdic- 
diction."^ 

"But  if  the  cross-bill  seeks  relief,  it  is  indispensable  that  it 
should  be  equitable,  otherwise  the  bill  will  be  demurrable;  for 
to  this  extent  it  is  not  a  pure  cross-bill,  but  is  in  the  nature 
of  an  original  bill,  seeking  further  aid  of  the  court  beyond  the 
purposes  of  defense  to  the  original  bill,  and  under  such  circum- 
stances the  relief  should  be  such  as  in  point  of  jurisdiction  the 
court  is  competent  to  administer." '  And  it  has  been  held  that 
where  an  answer  in  the  nature  of  a  cross-bill  contained  no 
equit}^  it  required  no  answer.'' 

(2)  By  plea.  A  cross-bill  will  not  be  subject  to  a  plea  to  the 
jurisdiction  or  to  the  person  of  the  defendant  in  the  cross-bill, 
for  by  bringing  the  original  case  the  plaintiff  has  affirmed  that 

143  N.  J.  Eq.  39,  41;  Newberry  v.  cient  equity  to  give  the  court  juris- 

Blatchford,  106  111.  584.  diction,  a  general  demurrer  to  the 

2  Story,  Eq.  PI.,  sec.  628.     Want  of  cross-bill  for  want  of  equity  will  not 

equity  in  a  cross-bill  brought  by  way  be  sustained. 

of  defense  to  the  original  bill  is  no  '  Gilmer  v.  Felhour,  45  Miss.  627, 

defense  to  the  cross- bill.  Lambert  v.  630;  Story,  Eq.  PI.,  sea  629. 

Lambert,  53  Me.  544.     If  the  original  *Horton  v.  Mercier,  31  Ga.  235. 
bill  is  retained    and  contains  sufB- 


§  225.]  DEFENSES   TO   CROSS-BILL.  307 

the  court  has  jurisdiction  of  the  cause  and  of  the  parties,  and 
that  the  case  is  properly  brought  in  the  equity  court.  If  the 
cross-bill  be  filed  by  one  who  cannot  bring  an  action  in  his  own 
name,  as  by  an  infant,  an  idiot  or  lunatic,  no  doubt  a  plea  to 
the  person  of  the  plaintiff  in  such  case  would  be  sustained.  All 
pleas  in  bar  to  which  an  original  bill  would  be  liable  may  be 
interposed  when  proper  to  meet  the  case  made  by  the  cross- 
bill.^ And  the  same  rule  obtains  here  as  obtains  to  an  original 
bill  where  the  plaintiff  fails  to  reply  to  the  plea,  in  which  case 
the  complainant  admits  the  facts  set  up  in  the  plea  to  be  true. 
And  so  it  has  been  held  that  where  a  complainant  in  a  cross- 
bill fails  to  reply  to  a  plea  of  a  former  adjudication,  he  thereby 
admits  the  truth  of  the  facts  set  up  in  the  plea,  and  the  only 
question  at  the  hearing  on  the  plea  is  its  sufficiency,  and  that 
evidence  offered  in  support  of  the  cross-bill  is  properly  ex- 
cluded.2 

(3)  By  answer.  As  a  general  rule  an  answer  to  a  cross-bill 
cannot  be  required  until  the  original  bill  has  been  answered. 
An  answer  to  a  cross-bill  performs  the  same  or  a  similar  office 
as  an  answer  to  the  original  bill;  by  it  the  issues  of  fact  are 
made  up  as  to  the  material  allegations  in  the  cross-bill,  which 
must  be  answered.  An  answer  on  oath  to  a  cross-bill  may  be 
required  the  same  as  though  it  were  an  original  bill  if  the 
cross-bill  alleges  new  matter.'  A  cross-bill  proper  may  be 
taken  as  confessed  if  it  is  not  answered,  in  which  case  its  alle- 
gations are  taken  as  true.  A  general  replication  in  such  case 
will  not  put  in  issue  the  allegations  of  the  cross-bill.* 

In  Whyte  v.  Arthur,^  where  the  absence  of  a  general  repli- 
cation to  the  original  bill,  where  defendants  had  filed  a  cross- 
bill, was  discussed,  it  was  held  that  the  defendant's  answer  to 
the  cross-bill  was  substantially,  and  for  all  practical  purposes, 
a  replication  to  the  defendant's  answer  to  the  original  bill. 
The  complainant  in  the  original  bill  and  defendants  in  the 
cross-bill  have  the  right  to  answer  the  cross-bill.  The  time 
for  such  answer  may  be  said  to  be  the  time  usuall}'  allowed  to 
answer  original  bills  filed  in  the  court,  but  if  the  defendants  in 
the  cross-bill  do  not  answer  and  the  complainant  goes  to  trial 

1  Story,  Eq.  PL,  sec.  832.  *  Coach  v.  Circuit  Judge,  97  Mich. 

2  Knowlton  v.  Han  bury,  117  111.  471.     563;  2  Barb.  Ch.  Pr.  135. 

3  Byrd  v.  Sabin,  8  Ark.  (3  Eng.)  279.        5 17  n.  J.  Eq.  521,  524 


308  DEFENSES   TO  CROSS-BILL.  [§g  220,  227. 

in  the  original  bill  without  requiring  an  answer  to  his  cross- 
bill, he  will  be  held  to  have  waived  his  right  to  an  answer 
and  to  have  abandoned  his  cross-bill.  If  he  relies  upon  his 
cross-bill,  he  should  insist  upon  an  answer,  and  if  it  is  not 
answered  should  enter  an  onler  ^>ro  confesso;  in  which  case 
the  allegations  in  the  cross-bill,  at  the  hearing,  must  be  tak'en 
as  true,*  having  the  same  effect  as  though  proven  in  the 
case.^  But  if  the  cross-bill  is  inconsistent  in  its  allegations  of 
fact  with  the  admissions  in  the  answer  to  the  original  bill  by 
the  complainant  in  the  cross-bill,  they  cannot  be  taken  as  true 
though  unanswered.' 

§  226.  Replication  of  coniplaiiiant  in  cross-hill. — The  rep- 
lication to  the  answer  to  a  crossbill  serves  the  same  pin- 
pose  as  the  replication  to  an  answer  to  an  original  bill.* 
It  is  a  general  denial  of  all  the  material  matters  set  up  in 
the  answer  and  puts  in  issue  all  questions  of  fact  involved  in 
the  cross-bill  and  the  answer.  It  is  necessary  that  it  should  be 
filed,  otherwise  the  facts  well  pleaded  in  the  answer  that  are 
responsive  to  the  material  allegations  in  the  cross-bill  will  be 
taken  to  be  true  upon  the  hearing,  provided  they  are  consist- 
ent with  the  answer  to  the  original  bill.* 

§227.  The  hearing. —  The  original  bill  and  the  cross-bill 
are  generally  heard  together,  for  they  usually  constitute  but 
one  case.  For  many  purposes  an  original  bill  and  cross-bill  in 
chancery  are  considered  as  one  suit  and  are  ordinarily  heard 
together,  and  the  rights  of  all  the  parties  in  respect  of  the 
matter  litigated  are  settled  by  one  decree.®  It  is  not,  how- 
ever, indispensably  essential   that  the  cross-bill  and  original 

1  Reed  v.  Kemp,  16I1L  445;  Thoma-  against  complainant  in  the  original 
son  V.  Neeley,  50  Miss.  iJlO;  Blair  v.  cause  on  the  hearing,  and  will  have 
Reading.  99  111.  600;  Coach  v.  Circuit  the  same  eflfect  as  if  he  had  ad- 
Judge,  97  Mich.  563;  Metcalf  v.  Hart,  mitted  the  same  facts  in  the  an- 
3  Wyo.  513.  swer."    Kidder  v.  Barr  et  aL,  35  N. 

2  White  V.  Buloid,  2  Paige  Ch.  (N.  H.  235. 

Y.)  164.      In  Griswold  v.   Simmons,  sPrentiss  Tool  Co.  v.  Godchaux,  66 

50  Miss.  137,  141,  the  court  say:  "A  Fed.  234. 

cross-bill  does  not  stay  proceedings  *  Post,  §  238. 

in  the  original  cause  except  by  order  ^  Ante,  §  199. 

of  the  court  upon  motion  and  notice.  ^V/hyte  v.  Arthur,  17  N.   J.    Eq. 

2  Barb.  Ch.  Pr.  134;  2  Danl.  Ch.  Pr.  521.  524;  Story,  Eq.  PI.,  sees.  400,  401; 

1656.     If  the  cross-bill  be  taken  as  3  Danl.  Ch.  Pr.  1751,  1752. 
confessed,  it  may  be  used  as  evidence 


§  228.1  DEFENSES DISCLAIMER.  309 

bill  should  be  heard  together,  but  it  would  seem  that  a  decree 
upon  a  hearing  of  a  cross-bill  would  not  be  considered  as  a 
final  decree  subject  to  an  appeal. 

In  Ex  parte  Railway  Co}  the  court  say:  "  It  matters  not 
that  at  a  former  day  in  the  term  a  special  decree  had  been 
rendered  upon  the  subject-matter  of  the  cross-bill,  and  that  an 
appeal  from  that  decree  had  been  taken;  for  'a  cross-bill  is  a 
mere  auxiliary  suit  and  a  dependency  of  the  original.'  As  we 
have  said  in  Ayers  v.  Carver  etal.^-  '  both  the  original  and  the 
cross-bill  constitute  one  suit '  and  ought  to  be  heard  at  the 
same  time.  Consequently,  '  any  decision  or  decree  in  the  pro- 
ceedings upon  the  cross-bill  is  not  a  final  decree  in  the  suit, 
and  not  the  subject  of  an  appeal  to  this  court.'  The  decree, 
whether  maintaining  or  dismissing  the  bill,  disposes  of  a  pro- 
ceeding simply  incidental  to  the  principal  matter  in  litigation 
and  can  only  be  reviewed  on  an  appeal  from  the  final  decree 
disposing  of  the  whole  case." 

IV.  Disclaimer, 

§  228.  The  natnre  of  the  disclaimer.—  While  a  disclaimer 
is  not,  strictly  speaking,  a  pleading,  it  is  usually  so  treated.  It 
has  been  said  that  it  is  a  species  of  answer,  as  it  is  the  first 
reply  or  pleading  to  the  complainant's  bill;  and  in  some  sense 
it  is  a  plea  in  bar  for  the  reason  that  it  alleges  that  the  com- 
plainant has  no  right  of  action  against  the  adverse  party. ^  By  a 
disclaimer  a  defendant  renounces  all  right,  title  or  interest  to 
the  subject-matter  of  the  demand  made  by  the  plaintiff's  bill; 
this  renunciation  must  be  full  and  complete  without  any  re- 
serve whatsoever;  not  merely  a  denial  of  "claim  in  a  partic- 
ular representative  character,  or  to  the  full  extent  to  which  it 
has  been  charged,  while  the  right  to  claim  in  a  different  char- 
acter, or  to  a  more  limited  extent,  is  in  no  wise  abandoned."  * 

The  disclaimer  must  be  so  complete  and  without  reserve  that 
it  will  stop  the  defendant  from  ever  at  any  time  setting  up  a 
claim  as  between  the  parties  and  privies  to  the  right  renounced, 

195  U.S.  221,  225;   Ayers  et  aL  v.  3  Prescott  v.  Hutchinson,  13  Mass. 

Carver  et  al.,  17  How.  (58  U.  S.)  591,  441;  Story,  Eq.  PL,  sec.  838. 

596;  Ayers  v,  Chicago,  101  U.  S.  184  *  Bently  v.  Cowman,  6  Gill  &  John. 

2  17  How.  (U.  S.)  591.  (MA)  152,  155. 


310  DEFENSES — DISCLAIMER.  [§  229. 

and  operates  as  an  estoppel,  but  only  to  the  extent  actually 
embraced  in  the  disclaimer.^ 

§  229.  When  it  can  be  interposed. —  It  follows  from  what 
has  already  been  said  as  to  the  nature  of  the  disclaimer  that  it 
can  only  be  interposed  when  the  defendant  has  no  interest  in 
the  subject-matter  of  the  suit  and  is  subject  to  no  liability. 
And  this  cannot  always  be  determined  by  the  facts  alleged  in 
the  disclaimer  itself;  it  must  necessarily  depend  upon  the  alle- 
gations in  the  bill  of  complaint,  for  if  the  bill  of  complaint  sets 
forth  a  case  which  shows  that  the  defendant  is  really  interested, 
or,  if  it  appears  that  in  order  to  settle  the  rights  and  liabilities 
of  either  the  complainants  or  defendants,  or  any  of  them,  the 
defendant  should  be  retained  as  a  party  to  the  suit  and  should 
answer  the  material  allegations  in  the  bill  of  complaint,  in 
such  case  it  would  not  be  proper  to  allow  the  defendant  to  file  a 
disclaimer;  and  if  he  disclaims  when  he  ought  to  answer,  the 
court  may  order  his  disclaimer  stricken  from  the  tiles.  As, 
for  example,  if  the  complainant  in  the  material  allegations  in 
his  bill  of  complaint  alleges  that  the  defendant  has  been  guilty 
of  fraud  and  has  thus  obtained  a  title  to  the  subject-matter  of 
the  litigation,  or  has  beclouded  the  title  of  the  complainant,  it 
would  not  be  permitted  the  defendant  to  merely  file  a  dis- 
claimer in  such  case,  for  the  complainant  would  be  entitled  to 
a  full  and  complete  answer  to  the  material  allegations  in  his 
bill;  and  so  if  the  bill  alleged  that  the  defendant  was  in  pos- 
session of  any  particular  or  peculiar  knowledge  bearing  upon 
the  equitable  rights  of  the  complainant  and  concerning  which 
relief  is  sought  by  the  bill,  the  defendant  will  be  compelled  to 
answer  the  bill  of  complaint,  and  could  not  be  dismissed  by  a 
mere  disclaimer  of  all  interest  or  liability  as  to  the  subject- 
matter  of  the  controversy. 

In  Isham  v.  Miller,^  where  the  bill  filed  by  the  complainant 

1  Tappan    v.    Boston,  etc.    Co.,  157  plaintiff  may    have   a   right   to  an 

Mass.  34,  32.  answer,     notwithstanding     a     dis- 

^44  N.  J.  Eq.  61.     "A   defendant  claimer;  and  in  such  a  case  the  de- 

cannot,  by  a  disclaimer,  deprive  the  fendant  cannot  shelter  himself  from 

plaintiff  of  the  right  of  requiring  a  answering  by  alleging  that  he  has 

full   answer   from   him,  unless  it  is  no  interest."   Story,  Eq.  PI.,  sec.  840; 

evident  that  the   defendant   ought  Glassington    v.   Thwaites,    2    Russ. 

not,  after  such  disclaimer,  to  be  re-  (Eng.)  458. 
tained  as  a  party  to  the  suit.     For  a 


§  229.]  DEFENSES — DISCLAIMER.  311 

evidenced  to  the  court  that  the  plaintiff  was  entitled  to  an 
answer,  and  that  the  motion  to  strike  defendant's  disclaimer 
from  the  files  ought  to  prevail,  the  court  say:  "The  ground 
of  this  motion  is  that  the  actionable  facts  alleged  in  the  bill 
make  a  case  against  which  a  disclaimer  constitutes  no  defense. 
Or,  to  state  the  ground  in  another  form,  the  complainant  says, 
for  a  defendant  standing  in  the  position  which  the  defendant 
in  this  case  does,  to  say,  I  disclaim  all  right  and  interest  in  the 
subject-matter  of  the  litigation,  neither  shows  that  the  com- 
plainant is  not  entitled,  as  against  the  defendant,  to  the  relief 
he  asks,  nor  that  the  defendant  is  entitled  to  a  dismissal.  A 
disclaimer  is  a  mode  of  defense,  and  if  it  prevails  the  defend- 
ant must  be  dismissed,  and,  as  a  general  rule,  he  will  have  a 
right  to  be  dismissed  with  costs  to  be  paid  by  the  complain- 
ant. If,  however,  a  defendant  attempts  to  disclaim  in  a  case 
where  his  disclaimer  does  not  entitle  him  to  a  dismissal,  but 
he  must,  notwithstanding  his  disclaimer,  still  be  retained  as  a 
party  defendant,  in  order  that  the  relief  which  the  facts  al- 
leged in  the  bill  show  the  complainant  to  be  entitled  to  may 
be  decreed  to  him,  the  pleading,  being  useless  to  the  defend- 
ant and  without  effect  in  the  cause,  except  as  an  obstruction, 
will  be  ordered  to  be  taken  from  the  files." 

In  Ellsioorth  v.  Curtis '  the  chancellor  said :  "  The  defend- 
ant cannot,  by  a  disclaimer,  deprive  the  complainant  of  the 
right  of  requiring  a  full  answer  from  him,  unless  it  is  evident 
that  the  defendant  ought  not,  after  such  disclaimer,  to  be  con- 
tinued a  party  to  the  suit." 

Where  the  bill  averred  a  fraudulent  transfer,  it  was  held 
that  a  party  defendant  obtaining  such  a  transfer  should  not 
be  discharged  on  his  mere  disclaimer.  The  court  say:  "A 
party  cannot  in  this  manner  get  rid  of  his  liability  to  answer 
a  suit  where  the  statements  of  the  bill  show  him  to  be  a  proper 
or  necessary  party."  ^  The  defendant  can  only  be  permitted, 
therefore,  to  interpose  a  disclaimer  when  from  all  the  facts 
alleged  in  the  bill  of  complaint,  as  well  as  in  the  disclaimer,  it 
appears  that  the  defendant  should  not  be  retained  as  a  party 

1 10  Paige  Ch.  (N.  Y.)  105,  107.  property,  the  subject  of  the  suit,  he 

2Bromberg  Bros.  v.   Heyer  Bros.,  cannot  be  compelled  to  answer  as  to 

69  Ala.  23,  24.     But   where   the   de-  after-value  of  such  property.  Tooker 

fendant    disclaims    all    interest    in  v.  Slosson,  4  Edw.  Ch.  (N.  Y.)  114 


312  DEFENSES— DISCLAIMER.  [^§  230-233. 

to  the  suit,  and  as  to  him  the  case  should  be  dismissed  with 
costs. 

§  230.  When  both  au  answer  and  disclaimer  may  be  filed. 
There  may  be  cases  where  it  would  be  proper  and  necessary 
that  the  defendant  should  file  both  a  disclaimer  and  an  an- 
swer, but  in  such  case  the  disclaimer  and  the  answer  tiled  must 
refer  to  different  and  separate  parts  of  the  bill,  and  must  not 
be  repugnant  to  each  other.  The  answer  thus  filed  will  bo 
subject  to  exceptions  when  insufficient.^ 

§  231.  A  disclaimer  acts  as  an  estoppel.— The  defendant 
by  filing  a  disclaimer  alleges,  as  we  have  seen,  that  he  has  no 
claim  or  interest  in  the  subject-matter  in  controversy,  and  by  it 
he  obtains  a  decree  of  dismissal  of  the  complainant's  bill  as  to 
him ;  and  having  reaped  the  benefit  of  a  disclaimer  he  is  forevor 
estopped  from  asserting,  as  between  himself  and  the  parties  to 
the  suit  and  their  privies,  any  interest  in  the  subject-matter 
involved.  It  operates  as  a  complete  bar  to  any  claim  he  may 
afterwards  set  up  to  the  extent  of  any  interest  in  the  matters 
embraced  in  his  disclaimer.  Even  if  the  disclaimer  be  untrue 
in  fact  it  is  binding  upon  him ;  the  defendant  may,  however, 
reserve  his  rights  against  his  co-defendants,  but  in  order  to  do 
this  he  must  make  a  special  reservation  in  his  disclaimer.'^ 

§  232.  If  the  disclaimer  is  filed  on  account  of  mistake  or 
ignorance. —  If,  after  filing  a  disclaimer,  the  defendant  dis- 
covers that  it  is  untrue,  and  that  it  was  filed  by  reason  of  a 
mistake,  or  ignorance  as  to  his  real  interest,  and  is  in  no  way 
the  result  of  bad  faith,  the  court,  upon  a  special  application 
and  a  strono:  showing:  of  such  facts,  setting  out  in  detail  his 
real  interest,  will  generally  permit  the  defendant  to  withdraw 
his  disclaimer  and  answer  the  bill,  but  if  he  "  takes  no  steps  to 
get  rid  of  the  effect  of  the  disclaimer  he  will  be  forever 
barred;  because  it  is  matter  of  record.'" 

§  233.  Signing,  verifying,  filing  and  serving.—  If  answer 
under  oath  is  waived,  the  disclaimer  need  not  be  verified,  but 
should  be  signed  by  the  disclaimant  and  his  counsel.  In  some 
jurisdictions  the  name  of  the  disclaimant  may  be  signed  by 
his  counsel,  the  same  as  counsel  may  sign  for  defendant  an  an- 

1  Ellsworth  V.  Curtis,  10  Paige  (N.  »  1  Danl.  Ch.  PL  &  Pr.  709;  Albert- 
Y.),  105,  107.  son  v.  Reding,  2  Murph.  (N.  C.)  283; 

2  1  Danl.  Ch.  PL  &  Pr.  707.  Seton  v.  Slade,  7  Ves.  Jr.  265. 


:§  233.] 


DEFENSES — ^DISCLAIMER. 


313 


swer  when  there  is  a  waiver  of  an  answer  under  oath,  but  the 
wisdom  of  such  a  practice  is  subject  to  criticism,  because  by 
the  disclaimer  defendant  makes  such  an  important  waiver  of 
rights  in  the  subject-matter  of  the  litigation,  not  only  in  the 
pending  litigation  but  for  all  time,  he  is  forever  estopped  from 
ciaimin°g  an  interest  inconsistent  with  his  disclaimer.     Indeed, 
it  has  been  said   that  counsel,   unless  especially  authorized, 
would  not  be  able  to  make  so  important  a  waiver  for  his  client. 
There  is  enough  at  least  in  the  criticism  to  warrant  one  in 
saying  that  the  better  practice  would  be  to  require  the  defend- 
ant to  sign  for  himself  the  disclaimer,  whether  the  bill  de- 
mands a°sworn   answer  or  not.     If  a  sworn  answer  is  not 
waived  the  disclaimer  should  be  verified,  for  it  is,  under  such 
circumstances,  to  a  certain  extent  at  least,  an  answer  to  the 
bill.     It  should,  when  completed,  be  filed  in  the  cause  and  a 
copy  served  on  the  solicitors   in  the  case.     The   disclaimer 
should  be  made  and  filed  at  the  time  an  answer  is  required 
by  the  rules  and  practice  of  the  court.^ 


» 1  Danl.  Ch.  PL  &  Pr.  708. 

As  to  the  rule  in  New  Jersey  see 
Dickerson  v.  Hodges,  43  N.  J.  Eq.  45. 
The  court  in  its  opinion  say:     "The 
rule  upon  this  subject,  as  given  in 
Smith's  Practice,  is  as  follows:     '  A 
disclaimer,  being  accompanied  with 
an  answer,  is  put  in  upon  oath.    It 
must  also  be  signed  by  the  defendant, 
and  in  no  case  can  such  signature  be 
waived  with  propriety,  since  no  rec- 
ord will  be  received  without  signa- 
ture, which  tends  to  the  prejudice  of 
the    rights    of    the    defendant.'    1 
Smith's  Ch.   Pr.   275.     Mr.    Barbour 
states  the  rule  in  substantially  the 
fiame   words.     1   Barb.  Ch.  Pr.   171. 
And  Mr.  Daniell  says  the  court  may 
give  a  defendant  leave  to  file  a  dis- 
claimer without  oath,  but  not  with- 
out signature,  and  that  when  a  dis- 
claimer is  filed  without  oath  the  de- 
fendant's   signature    should   be  at^ 
tested  by  some  person  competent  to 
be  a  witness.     He  also  says  that  it 
must  be  signed  by  counsel.     1  Danl. 
Ch.  PI.  &  Pr.  407. 


"The  signature  of  counsel  is  not 
necessary.     All  pleadings  in  equity, 
according  to  the  practice  in  England, 
must  be  signed  by  counsel,  but  the 
rule  is  different  in  this  state.    The 
signature  of  counsel  is  only  neces- 
sary when  required  by  statute  or  an 
established  rule  of  practice.     An  an- 
swer is  suflBcient  if  signed  by  a  so- 
licitor, or  by  the  defendant  himself. 
Freehold    Mutual     Loan     Ass'n    v. 
Brown,   1   Stew,   Eq.  42.    Nor  is  an 
oath  necessary  in  cases  where  the 
complainant   has,   as  in    this    case, 
waived  his  right  to  compel  the  de- 
fendant to  answer   under  oath.     A 
disclaimer  is  regarded  as  in  the  nat- 
ure of  an  answer,  and  is  therefore 
to  be  put  in  under  oath  when  the 
defendant  is  required  to  answer  un- 
der  oath,  but  not  otherwise.     This 
is  apparent  from  Mr.  Smith's  state- 
ment of  the  rule.     He  says,  '  A  dis- 
claimer, being  accompanied  with  an 
answer,  is  put  in  upon  oath.'    There 
seems  to  be  no  other  reason  for  re- 
quiring an  oath.     But  a  pleading  of 


314  DEFENSES — DISCLAIMER,  [§   23i. 

§234.  The  decree  in  ease  discljiiiner  is  filed.— The  de- 
fendant will  not  always  be  allowed  to  file  a  dischiiraer  and 
thus  be  excused  from  making  an  answer  to  the  bill  of  com- 
plaint.' If,  however,  he  is  permitted  to  file  a  gener3,l  disclaimer 
to  the  bill  of  complaint,  as  a  general  rule  the  court  must  dis- 
pose of  the  case  as  to  him  by  dismissing  the  bill,  but  if  it  is 
necessary  to  protect  the  rights  of  the  other  parties  in  the  case,, 
the  disclaimer  may  be  held  until  the  hearing  of  the  cause. 

In  Sawyer  v.  Campbell  et  al.^  where  the  defendant  appeared 
and  filed  a  disclaimer  disclaiming  "all  manner  of  right,  title 
and  interest  whatever  in  and  to,  and  all  and  all  manner  of 
claims  or  liens  upon  the  real  estate,  or  any  part  or  parcel 
thereof  described  in  said  bill  of  complaint,  and  denied  all  and 
all  manner  of  unlawful  combinations,  confederacies,"  etc.;  and 
where  there  was  also  a  stipulation  by  the  disclaimant  and  the 
other  defendants  releasing  him  from  liability,  the  court  below 
ordered  that  the  bill  of  complaint  stand  dismissed  as  to  the  dis- 
claimant; but  the  supreme  court  held  that  the  proper  practice 
would  have  been  to  have  retained  the  disclaiming  defendant, 
but  that  there  was  no  reversible  error  in  the  action  of  the 
court  in  dismissing  him.  The  court  say:  "The  bill  waived 
the  oath  to  his  answer,  and  it  would  not  have  been  evidence, 
as  an  admission,  or  otherwise,  against  his  co-defendants.     No 

this  kind  is  manifestly  intended  to  relating  to  the  conduct  of  a  euit,  yet, 
have  an  effect  which  an  answer  does  even  in  such  matters,  he  cannot 
not  ordinarily  hava  It  is  intended  surrender  a  substantial  right  of  his 
to  operate  as  a  release.  An  oath  is  client  without  his  client's  consent, 
not  necessary  to  tlie  due  execution  Howe  v.  Lawrence,  2  Zab.  99. 
of  such  an  instrument,  but  the  sig-  "A  disclaimer  being  intended  to 
nature  of  the  party  is.  Under  the  operate  as  a  release,  there  is  mani- 
authority  conferred  by  a  retainer,  a  fest  propriety  in  the  rule  requiring 
solicitor  has  no  authority  to  surrender  that  it  shall  be  signed  by  the  defend- 
any  substantial  right  of  his  client,  ant  himself,  and  that  his  signature 
A  solicitor  cannot  give  up  the  se-  shall  be  attested.  Such  requirement 
curity  of  his  client  without  actual  is  necessary  for  the  due  protection  of 
payment,  unless  he  is  specially  au-  both  parties,  and  simply  puts  such 
thorized  to  do  so.  Terhune  v.  Colton,  transactions,  occurring  in  the  course 
2  Stock.  21.  Nor  can  he  accept  pay-  of  a  suit,  on  the  same  footing  as  like 
ment  of  a  part  of  a  debt  in  satisfac-  transactions  occurring  outside  of  a 
tion  of  the  whole  without  like  au-  judicial  proceeding." 
thority.  Watts  v.  Frenche,  4  C.  E.  i  See  ante,  %  228. 
Gr.  407.  And,  while  an  attorney  or  2130111.  186,  204;  Perkin  v.  Stafford, 
solicitor  may  make  valid  agreements  10  Simon's  Ch.  562. 


§  235.]  DEFENSES — DISCLAIMER.  '  315 

discovery  was  sought  by  the  bill,  and  he  was  not  called  upon 
to  account;  no  relief  of  any  other  character  was  asked  against 
him;  no  objection  to  his  dismissal  from  the  suit  was  inter- 
posed, either  at  the  time  the  order  was  made,  or  during  the 
term,  or  at  any  time  thereafter.  .  .  .  There  is  nothing  in 
the  record  to  indicate  or  raise  a  presumption  that  disclaimant 
is  in  any  way  legally  liable  to  respond  to  appellants,  or  that 
if  he  had  remained  a  defendant  it  would  have  been  of  even  the 
slightest  advantage  to  them;  or  that  they  would  in  that  event 
have  pursued  a  course  other  than  they  did.  In  this  state  of  the 
case,  to  reverse  the  decree  solely  on  account  of  his  dismissal 
from  the  cause  would  be  sheer  technicality." 

§  235,  Costs.— The  question  of  costs  is  one  resting  largely 
in  the  discretion  of  the  court;  as  a  general  rule,  however,  when 
the  defendant  disclaims,  the  bill  as  to  him  is  dismissed  with 
costs.  But  if  there  are  any  circumstances  which  would  in- 
duce the  court  to  believe  that  the  bill  was  filed  because  of  the 
conduct  of  the  defendant,  or  because  of  his  negligence,  or  if 
in  any  way  he  was  responsible  for  having  been  made  a  de- 
fendant, the  court  may  refuse  to  award  him  costs.^ 

iln    Buchanan   v.   Greenway,    11  Martin  et  al,  19  III.  105,  parties  who 

Beav.  (Eng.)  58,  where  a  party  de-  were   made  defendants  to  the  bill 

fendant  in  a  suit  for  foreclosure  in-  under  an  averment  that  they  claim, 

terested  in  the  equity  of  redemption  or  pretend  to  claim,  title  to  the  land, 

filed  a  disclaimer  and  stated  in  it  that  may  file  a  disclaimer  of  all  interest 

he  did  not  claim  and  never  claimed  therein  and  become  entitled  to  costs, 

any  interest  whatever,  it  was  held  Kitts  et  al.  v.  Wilson  et  al,  130  Ind. 

upon  the  hearing  that  he  was  en-  492;  Manning  v.  Heady,  64  Wis.  630; 

titled  to  his  costs.  Benbow  v.  Davies.  Keyser    v.    Meusback,  77    Tex.   64; 

11  Beavan,  369.     In  Finch  et  aL  v.  Tate  v.  Wyatt,  77  Tex.  493. 


316 


DEFENSES    IN    EQUITY. 


[§  236. 


§  236.  A  chart  of  defenses. — 


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CHAPTER  IX. 

THE  REPLICATION. 


§  240.  Time  for  filing  the  replication. 

241.  The  form  of  a  general  replica- 
tion. 

242.  Waiver  of  the  replication. 


§  337.  The  nature  of  the  replication. 

238.  When  complainant  should  file 

a  replication. 

239.  Filing  a  replication  waives  the 

right  to  except. 

§  237.  The  nature  of  the  replication.— The  replication 
IS  the  last  issuable  pleading  in  an  equity  case,  and  is  made 
and  filed  by  the  plaintiff  in  reply  to  an  answer  or  a  plea.    For- 
merly there  were  two  kinds  of  replications:  (1)  General,  and 
(2)  special.     The  special  replication  was  interposed  when  new 
matter  in  the  answer  was  set  out  as  a  defense,  and  if  the  spe- 
cial reply  still  contained  new  matter  by  way  of  answering  the 
allegations  of  the  answer,  the  defendant  might  meet  it  by  a 
rejohider;  and  the  plaintiff  could  reply  to  this  and  to  any  new 
matter  it  contained  by  a  surrejoinder,  which  if  new  matter 
was  still  set  up  could  be  met  by  a  rebutter,  and  this  in  like 
manner  by  a  surrebutter;  these  pleadings  continuing  until  the 
case  was  at  issue  upon  all  the  material  facts  involved.     But 
special  replications  have  long  since  gone  out  of  use  except  as 
they  have  to  some  extent  been  retained  by  codes  of  practice  in 
some  of  the  states.     The  practice  now  is  to  permit  the  com- 
plainant to  amend  the  bill,  if  upon  the  coming  in  of  the  answer 
he  should  discover  it  was  necessary  to  allege  in  his  bill  matter 
to  meet  the  claims  of  the  defendant,  and  require  the  defend- 
ant to  answer  the  amended  bill.^ 

In  Storms  v.  Storms^  the  vice-chancellor  directed  a  special 
replication  to  be  stricken  from  the  files.  The  court  say:  ''The 
ancient  practice  of  the  court  of  chancery  allowed  special  repli- 
cations to  be  filed.  But  it  was  found  to  lead  to  great  incon- 
venience and  was  abolished,  or  rather  discontinued.     .     .     . 

1  McClane's  Adm'x  v.  Shepherd's  Ex'x,  21  N.  J.  Eq.  76,  78;  Chouteau  et  aL 
V.  Rice  et  al,  1  Minn.  106. 
2 1  Edw.  Ch.  (N.  Y.)  358. 


318  THE    REPLICATION.  [§  237. 

'  Special  replications,'  says  Judge  Hinde,  '  with  all  their  con- 
sequences, are  now  out  of  use,  and  the  plaintiff  is  to  be  re- 
lieved according  to  the  form  of  the  bill,  whatever  new  matter 
may  have  been  introduced  by  the  defendant's  plea  or  answer. 
.  .  .  Instead  of  putting  in  a  special  replication,  the  com- 
plainant might  have  moved  to  amend  his  bill,  by  charging  the 
pretenses  of  the  defendant  as  to  the  want  of  jurisdiction,  and 
alleging  the  contrar\'  to  be  true.  And,  therefore,  it  is  said  in 
the  books  that  the  complainant,  by  his  pleading,  not  only 
puts  a  bill  upon  file,  but  also,  virtually,  a  special  replication. 
Whenever  he  sets  out  and  negatives  the  alleged  pretenses  of 
the  defendant,  the  remedy,  it  will  be  seen,  is  open  to  the  com- 
plainant without  a  distinct  special  replication." 

In  the  United  States  court  this  is  regulated  by  rules  of  prac- 
tice.' In  some  of  the  states  it  has  been  permitted  by  special 
enactments,  where  new"  matter  is  alleged  in  an  answer  which 
constitutes  a  claim  for  affirmative  relief, —  that  is  to  say,  an 
answer  in  the  nature  of  a  cross-bill. 

In  West  Virginia  -  such  a  practice  is  permitted  where  the 
answer  alleges  new  matter  constituting  a  claim  for  affirmative 
relief,  but  the  court  in  Elliott  v.  Trahern'^  say:  "As  to  the 
practice  of  filing  a  special  replication,  we  find  that  it  has  be- 
come obsolete." 

In  Sanders'  Equity  it  is  said  "  that  the  general  replication  is 

lU.  S.  Eq.  Rule  45.  "No  special  only  puts  in  issue  the  truth  and  suf- 
replication  to  an  answer  shall  be  ficiency  of  the  matter  stated  in  the 
filed."  And  that  "if  any  matter  bill  and  answer.  If  it  is  necessary 
alleged  in  the  answer  shall  make  it  for  a  complainant  to  put  in  issue  any 
necessary  for  the  plaintiff  to  amend  fact  on  his  part  in  avoidance  of  mat- 
his  bill,  he  may  have  leave  to  amend  ter  set  up  by  a  defendant,  he  must 
the  same  with  or  without  payment  do  it  by  proper  charges  in  his  bill 
of  costs,  as  the  court,  or  judge  He  may  in  the  original  bill  antici- 
thereof,  may  in  his  discretion  di-  pate  the  defense  that  will  be  made, 
rect"  This  in  Southern  Pac.  Ry.  and  allow  any  matter  necessary  to 
Co.  V.  United  States,  168  U.  S.  1,  57,  explain  it;  or,  omitting  all  reference 
was  held  to  mean  that  a  general  to  the  defense,  he  may,  on  the  corn- 
replication  is  always  sufficient  to  ing  in  of  the  answer,  introduce  the 
put  all  material  allegations  of  an  an-  new  matter  into  the  case  by  an 
swer  or  an  amended  answer  in  issue,  amendment  to  the  bill  Story,  Eq. 
unless  it  is  imperatively  required  by  PI.,  sec.  878;  Tarlton  v.  Vietes,  1  Gil. 
rules    of    pleadings     that    the   bill  (111.)  470, 

shall  be  amended.    In  White  v.  Mor-  ^  Code,  p.  810,  ch.  125,  sec.  57. 

rison,  11  111.  361,  366,  it  was  held  that  ^  35  W.  Va.   634,  64'2;  Kilbreth  v. 

special  replications  in  chancery  are  Root's  Adm'x,  33W,  Va,  600,  11  S.  E. 

now  disused;   a  general  replication  21. 


§  238.]  THE    KFJPLICATION.  319 

now  only  used  for  raising  new  issues  or  supplying  a  defect  in 
the  statement  of  the  bill.  The  special  replication  has  become 
obsolete  both  in  England  and  in  this  country.  The  office  of 
the  special  replication  is  supplied  by  the  filing  of  an  amended 
bill."  '  The  court  further  say,  "  this  provision  of  the  statute 
must  be  regarded  as  creating  an  exception  to  the  general  rule 
of  practice  established  both  in  England  and  in  this  country, 
and  the  proper  course  to  be  pursued  by  a  plaintiff  is  to  amend 
his  bill,  unless,  as  contemplated  by  the  statute,  new  matter  is 
set  up  in  the  answer  which  entitles  the  defendant  to  affirma- 
tive relief." 

Where,  in  Michigan,  the  defendant  by  a  rule  of  practice  is 
permitted  to  claim  in  his  answer  the  benefits  of  a  cross-bill 
which  sets  out  by  proper  averments  facts  entitling  him  to  af- 
firmative relief  and  prays  the  court  for  such  relief,  it  was  held 
that  a  general  replication  puts  the  original  case,  as  made  by 
the  bill  and  answer,  at  issue,  but  it  does  not  traverse  the  aver- 
ments of  the  answer  which  are  the  basis  of  the  cross-bill.''*  The 
general  rule,  however,  in  this  country  and  in  England  is  that 
no  special  replication  will  be  allowed.  And  where  new  mat- 
ter is  set  up  in  the  replication  it  will  be  stricken  out  as  sur- 
plusage.' 

§  238.  When  complainant  shonid  file  a  replication. —  The 
same  rule  of  practice  with  like  results  obtains  in  the  matter  of 
replying  to  an  answer  as  in  case  of  replication  to  a  plea.*  If 
the  defendant  by  his  answer  has  admitted  the  material  allega- 
tions of  the  bill  to  an  extent  that,  admitting  the  answer  to  be 
true,  the  plaintiff  would  be  entitled  to  the  relief  prayed  for  in 
his  bill,  no  replication  is  necessary,  but  the  case  should  be  set 
down  for  hearing  upon  bill  and  answer,  in  which  case  the  court 
may  order  a  decree  upon  the  facts  set  forth  in  the  bill  and  ad- 
mitted or  found  to  be  true  by  the  allegations  in  the  answer. 
But  if  the  allegations  of  the  bill  are  traversed  by  the  answer, 
or  if  new  matter  by  way  of  defense  to  the  case  made  by  the 
bill  is  set  up  in  the  answer,  and  the  plaintiff  desires  to  trav- 

1  Mitf.  Eq.  PI.  333;  Millers  Heirs  v.  98  N.  C.  414,  4  S.  E.  197;  Wilt  v.  Huff- 

Mclntyre,  6  Pet.  (U.  S.)61;  Chalfants  man,  46  W.  Va.  473,  33  S.  E.  279. 

V.  Martin,  25  W.  Va.  394;  Briggs  v.  2Coach  v.  Adsit,  97  Mich.  563. 

Enslow,  44  W.  Va.  499;  Norfolk  Ry.  3  Newton  v.  Thayer,  34  Mass.    (17 

Co.  V.  McGarry,  42  W.  Va.  395,  26  S.  Pick.)  129. 

E.  297.     And  see  Houston  v.  Sledge,  *  Ante,  §  176. 


320  THE    REI'LICATION.  [§  239. 

erse  these  facts,  he  should  file  a  general  replication,  which  is 
held  sufficient  to  deny  all  the  facts  alleged  in  the  answer.'  If 
the  plaintiff  fails  to  file  a  replication,  he  will  be  held  to  have 
abandoned  his  right  to  traverse  the  allegations  contained  in 
the  answer,  and  the  answer  will  be  taken  as  true,  and  no  evi- 
dence can  be  given  by  the  complainant  to  contradict  it.-  Bat 
where  the  answer  contains  improper  and  immaterial  allega- 
tions no  replication  is  necessary,'  nor  is  a  replication  necessary 
to  a  disclaimer.* 

§  23i>.  Filing  a  replication  waives  the  right  to  except. — 
It  is  a  general  rule  in  pleading  that  the  filing  of  an  issuable 
plea  or  answer  waives  all  formal  objections  to  the  pleading 
thus  answered.  As  we  have  seen,  if  the  answer  to  the  bill  of 
complaint  is  not  sufficient,  if  it  fails  to  fully  and  satisfactorily 
answer  the  material  allegations  of  the  bill,  the  complainant 
may  except  to  it,  and  if  the  exceptions  are  sustained  compel  the 
defendant  to  answer  the  allegations  that  are  the  subject  of  the 
exceptions.  The  importance  of  this  has  been  discussed.*  If 
the  complainant  fails  to  file  exceptions  to  the  answer,  but 
instead  thereof  files  a  replication,  thus  putting  in  issue  the 
facts  raised  in  the  answer,  he  waives  the  right  to  except,  and 
no  matter  how  defective  the  answer  may  be  the  replication 
will  be  treated  as  a  waiver  of  such  objections. 

In  the  case  of  Slater  v.  Maxwell^  the  court  in  discussing  this 

1  Alfred,  etc.  Brick  Co.  v.  Trott,  16  2  Robertson  v.  Schwenk,  18  Pa.  Ca 
App.  D.  C.  293.  When  [the  trial  is  Ct.  577;  Pierce  v.  West,  Fed.  Cas. 
had  upon  bill  and  answer  and  norep-  10,909;  Byers  v.  Sexton,  22  Ark.  533; 
lication  is  filed,  according  to  the  uni-  Rogers  v.  Mitchell,  41  N.  H.  154; 
form  rule  of  practice  in  a  court  of  Mills  v.  Pittman,  1  Paige  Ch.  (N.  Y.) 
equity  the  answer  must  be  consid-  490;  Hall  v.  Clagett,  48  Md.  223; 
ered  as  true.  Independent  College  Dyer  v.  Dean,  69  Vt,  370;  Henry  v. 
V.  Zeigler,  86  111.  App.  S^JO;  County  Ohio  River  Co.,  40  W.  Va.  234. 
of  Cook  V.  Great  Western  Ry.  Co.,  119  3  Briggs  v.  Enslow,  44  W.  Va.  499, 
111.  218.  Upon  such  a  hearing  the  29  S.  E.  1008;  Suydam  v.  Bartle,  10- 
complainant  admits  that  all  that  is  Paige  (N.  Y.),  94.  And  in  Wallace 
stated  in  the  answer  is  true  whether  v.  Field,  56  Mich.  3,  it  was  held  that 
it  be  responsive  to  the  bill  or  not,  where  on  a  petition  for  execution  for 
and  that  he  has  no  ground  for  relief  deficiency  the  answer  did  not  set  up 
except  the  facts  which  are  substan-  any  material  defense,  or  sufficient 
tially  admitted  in  the  answer  to  be  to  discharge  the  deficiency,  the  re- 
true.  De  Wolf  V.  Long,  2  Gil.  (111.)  ply  thereto  was  unnecessary. 
679;  Martin  v.  Reese  (Tenn.,  1899),  <  Spoffard  v.  Manning,  2  Edw.  Ch. 
57  S.  W.  419;  Wilt  v.  Huffman,  46  W.  (N.  Y.)  358. 

Va.  473;  Bierne  v.  Ray,  37  W.  Va,  6^?ife,  gl95.                                        ^ 

571,  16  S.  E.  804.  «6  Wall  (U.  S.)  268,  274;  Lorton  ▼,« 


§  240.] 


THE    REPLICATION. 


321 


question  say:  "The  distinction  which  is  generally  made  be- 
tween recent  and  remote  acts  or  declarations  of  the  defendant 
would  hardly  seem  applicable  to  a  case  like  the  present.  It  is 
not  necessary,  however,  to  attempt  to  draw  any  nice  distinc- 
tions in  this  particular,  for  the  answer  was  not  excepted  to, 
and  by  the  general  replication  the  complainant  has  waived  all 
objections  to  its  sufficiency."  But  the  filing  of  a  replication 
which  is  held  to  deny  the  allegations  of  fact  set  up  in  the  an- 
swer does  not  deprive  the  complainant  of  the  benefit  of  the 
admissions  of  the  defendant  in  the  answer.^ 

§  240.  Time  for  filing  the  replication.— The  time  for  filing 
the  replication  is  fixed  by  rules  of  practice  of  the  several  courts. 
In  the  United  States  equity  court  after  an  answer  is  filed  the 
complainant  has  until  the  next  rule  day  to  file  exceptions  to 
the  answer  for  insufficiency,  and,  if  he  files  no  exceptions,  the 
plaintiff  will  have  until  the  succeeding  rule  day  to  file  a  gen- 
eral replication.^ 


Seaman,  9  Paige  (N.  Y.),  60S:  Mc- 
Kim  V.  Mason,  2  Md.  Ch.  510;  Ring- 
gold V.  Patterson,  15  Ark.  209. 

1  In  Cavender  v.  Cavender,  3  Mc- 
Crary  (U.  S.),  158,  the  court  say: 
"Nor  does  the  fact  that  there  is  a 
general  denial  of  the  allegations  of 
the  answer  by  complainant's  repli- 
cation deprive  him  of  the  benefits 
of  the  admissions  contained  in  the 
answer.  The  purpose  of  the  general 
replication  is  to  put  in  issue  any 
new  matter  set  forth  in  the  answer. 
It  does  not  nullify  the  effect  of  an 
admission  in  the  answer  of  an  allega- 
tion of  the  bill."  Story,  Eq.  PL,  sec. 
880. 

a.Hendrickson  v.  Bradley,  29  U.  S. 
C.  C.  A.  803,  85  Fed.  508. 

United  States  Equity  Rule  61: 
"  After  an  answer  is  filed  on  any  rule 
day,  the  plaintiff  shall  be  allowed 
until  the  next  succeeding  rule  day 
to  file  in  the  clerk's  office  exceptions 
thereto  for  insufficiency,  and  no 
longer,  unless  a  longer  time  shall  be 
allowed  for  the  purpose,  upon  cause 
shown  to  the  court,  or  a  j  udge  thereof; 
21 


and,  if  no  exception  shall  be  filed 
thereto  within  that  period,  the  an- 
swer shall  be  deemed  and  taken  to 
be  sufficient." 

United  States  Equity  Rule  66: 
Whenever  the  answer  of  the  defend- 
ant shall  not  be  excepted  to,  or  shall 
be  adjudged  or  deemed  sufficient, 
the  plaintiff  shall  file  the  general 
replication  thereto,  on  or  before  the 
next  succeeding  rule  day  thereafter; 
and  in  all  cases  where  the  genera? 
replication  is  filed,  the  cause  shall  be 
deemed,  to  all  intents  and  purposes 
at  issue,  without  any  rejoinder  or 
other  pleading  on  either  side.  If 
the  plaintiff  shall  omit  or  refuse  to 
file  such  replication  within  the  pre 
scribed  period,  the  defendant  shall 
be  entitled  to  an  order,  as  of  course 
for  a  dismissal  of  the  suit;  and  the 
suit  shall  thereupon  stand  dismissed 
unless  the  court,  or  a  judge  thereof, 
shall,  upon  motion,  for  cause  shown, 
allow  a  replication  to  be  filed  nmic 
pro  tunc,  the  plaintiff  submitting  to 
speed  the  cause,  and  to  such  other 
terms  as  may  be  directed." 


322  THE   REPLICATION.  [§§  241,  242. 

§  241.  The  form  of  a  general  replication.— The  form  of 
the  general  replication  has  undergone  very  many  changes.  At 
an  early  period  the  following  form  was  used,  and  in  some  juris- 
dictions it  is  still  retained :  "  This  repliant,  saving  and  reserving 
to  himself  all  and  all  manner  of  advantage  of  exception,  which 
may  be  had  and  taken  to  the  manifold  errors,  uncertainties 
and  insufficiencies  of  the  answer  of  the  said  defendants,  for 
replication  thereunto  saith  that  he  doth  and  will  aver,  maintain 
and  prove  his  said  bill  to  be  true,  certain  and  sufficient  in  tlie 
law  to  be  answered  unto  by  the  said  defendants,  and  that  the 
answer  of  the  said  defendants  is  very  uncertain,  evasive  and 
insufficient  in  the  law  to  be  replied  unto  by  this  repliant;  with- 
out this,  that  any  other  matter  or  thing  in  the  said  answer 
contained,  material  or  effectual  in  the  law  to  be  replied  unto, 
and  not  herein  and  hereby  well  and  sufficiently  replied  unto, 
confessed  or  avoided,  traversed  or  denied,  is  true;  all  which 
matters  and  things  this  repliant  is  ready  to  aver,  maintain  and 
prove  as  this  honorable  court  shall  direct,  and  humbly  prays 
as  in  and  by  his  said  bill  be  hath  already  prayed."  •  The  tend- 
ency, however,  has  been  to  very  much  abbreviate  this  form, 
retaining  merely  enough  of  it  to  show  that  the  complainant, 
notwithstanding  the  answer  of  the  defendant,  still  demands 
the  relief  prayed  for  in  his  bill  of  complaint.  As,  for  example, 
in  Michigan  the  form  of  the  replication  is  as  follows:  "The 
complainant  says  that  notwithstanding  the  answer  of  the  de- 
fendant he  is  entitled  to  the  relief  prayed  in  his  bill  of  com- 
plaint." 

§  242.  Waiver  of  the  replication.— While  the  replication, 
as  we  have  seen,  is  a  pleading  required  to  close  the  pleadings 
in  the  case  and  bring  the  case  to  issue  upon  the  merits,  still  if 
the  complainant  has  failed  to  serve  his  replication  on  the  de- 
fendant, and  the  defendant  proceeds  to  the  trial  of  the  cause 
without  it,  attends  and  cross-examines  witnesses,  it  has  been 
held  to  be  a  waiver  of  all  objections  to  the  replication.^  And 
so  where  by  mistake  the  replication  w^as  not  filed,  the  court 
allowed  the  complainant  to  reply  and  introduce  proofs  on 
equitable  terms." 

1  Story,  Eq.  PI,  sec.  878,  note  3. 

2  Brooks  V.  Mead,  Walk.  Ch.  (Mich.)  389. 
'Hardwick  v.  Bassett,  25  Mich.  149. 


CHAPTER  X. 


AMENDMENTS,  SUPPLEMENTAL  PLEADINGS,  AND  REVIVOR 


§  243.  Allowed  in  certain  cases. 

L  AMENDMENXa 

244.  Amendments  allowed  to  both 

parties. 

245.  Mispleadingin  matter  of  form. 

246.  Amendments  rest  largely  in 

the  discretion  of  the  court. 

247.  When  the  pleadings  are  veri- 

fied. 

248.  As  to  matters  occurring  after 

filing  the  original  bill. 

249.  When  application  should  be 

made  to  amend. 

250.  When  amendments  of  the  bill 

will  be  allowed. 

251.  When  amendments  of  the  an- 

swer will  be  allowed. 

252.  Same— At  the  hearing. 

253.  Same  —  After  the  hearing. 

254.  Amendments  allowed  by  ap- 

pellate courts. 

255.  How  amendments  made. 

256.  The  effect  of  amendment 

257.  Amendments  making  a  new 

and  different  case  not  al- 
lowed. 

258.  Same  —  Limitations  to  amend 

the  answer. 

259.  Amendment  of  the  answer  at 

the  hearing. 

IL  Supplemental  Pleadings. 

260.  The  office  and  nature  of. 

261.  Must  obtain  leave  of  court  to 

file. 

262.  Granting  leave  to  file  supple- 

mental pleadings. 

203.  Some  limitations. 

204.  Parties  to  supplemental  bill 


265.  Substance  and  frame  of  the 

supplemental  bilL 

266.  Proceedings  upon  filing  sup- 

plemental bill. 

267.  Defenses  to  the  supplemental 

bill  are  the  usual  defenses 
in  equity. 

268.  An  original  bill  in  the  nature 

of  a  supplemental  bill. 

269.  A  supplemental  answer. 

270.  Leave  of  court  must  be  ob- 

tained. 
HI  Bills  of  Revivor. 

271.  The  nature  of  the  bill  of  re- 

vivor. 

272.  The  interest  necessary  to  sup- 

port the  bill 
278.  Parties  to  the  bill  of  revivor. 

274.  Same    subject  —  Parties    de- 

fendant. 

275.  Original  bill  in  the  nature  of 

a  bill  of  revivor. 

276.  When  the  defendants  can  sus- 

tain a  bill  of  revivor. 

277.  The  form  of  the  bill  of  revivor. 

278.  Distinction   between  the  bill 

of  revivor  and  a  bill  in  the 
nature  of  a  bill  of  revivor, 

279.  The  form  of  the  bill  in  the 

nature  of  a  bill  of  revivor. 

280.  Bills  of  revivor  and  supple- 

ment. 

Defenses. 

281.  Defenses  to  the  several  bills 

of  revivor: 
By  plea. 
By  answer. 
Replication. 
The  hearing. 


324       AMENDMENTS,  SUPPLEMENTAL    PLEADINGS,  ETC.       f§§  243-45. 

§243.  Allowed  in  certain  cases. —  The  office  of  pleadings 
is  to  apprise  the  court  and  the  opposite  party  of  the  case 
claimed  and  the  relief  sought,  or  the  defense  relied  upon  by 
the  party  filing  them.  How  fully  this  must  be  done  and  how 
particularly  the  facts  must  be  alleged  has  already  been  dis- 
cussed. As  we  shall  see,  the  evidence  adduced  at  the  hearing 
and  the  decree  of  the  court  is  more  or  less  limited  by  the  case 
alleged  in  the  pleadings,  but  an  equitable  determination  of  a 
cause  could  not  in  justice  be  allowed  to  fail  because  of  omis- 
sions in  setting  out  the  entire  case  in  the  pleadings  in  strict 
compliance  with  rules  that  obtain  in  equity  pleading;  so 
amendments  or  supplemental  pleadings,  and  revivor  of  causes 
in  certain  proper  cases,  will  be  allowed. 

I.  Amendments. 

§  244.  Anientlments  allowed  to  both  parties. —  The  privi- 
lege to  amend  is  not  confined  to  either  the  party  plaintiff  or 
defendant,  but  it  has  been  said  that  amendments  are  allowed 
to  the  defendant  with  much  more  caution  than  to  the  plaint- 
iff.^ The  reason  for  any  distinction,  however,  is  hardly  ap- 
parent, except  it  may  be  that  the  plaintiff,  having  set  forth  his 
case,  all  the  facts  are  fully  and  particularly  suggested  and 
brought  to  the  mind  of  the  defendant,  and  there  should  not  be 
so  much  occasion  for  mistakes  or  omissions  in  setting  up  the 
defense  to  the  bill  filed.  If  there  is,  however,  a  distinction 
existing,  it  is  hardly  perceptible  in  real  practice,  for  it  may  bo 
said  to  be  a  general  rule  that,  for  good  cause  shown  and  for 
the  furtherance  of  justice,  amendments  to  the  pleadings  of 
either  party  will  be  allowed. 

§  245.  Mispleading  in  matter  of  form. —  Usually  misplead- 
ing in  mere  matters  of  form  will  not  be  allowed  to  prejudice 
any  party,  and  if  they  are  insisted  upon  the  court  will  allow 
the  pleading  to  be  amended,  or  will  wholly  ignore  them  at  the 
hearing  where  the  party  has  failed  to  take  advantage  of  them 
at  an  earlier  stage  of  the  pleadings  by  way  of  a  demurrer  or 
an  exception,  as  the  case  may  be.  Substance  and  substantial 
facts  brought  in  at  the  hearing  will  govern,  and,  if  necessary 

1  Story,  Eq.  PL,  sec.  894;  Freeman  v.  Michigan  State  Bank,  Harr.  Ch. 
(Mich.)  311. 


§  245.]         AMENDMENTS,  SUPPLEMENTAL    PLEADINGS,  ETC.  325 

to  do  equity  in  the  cause,  the  court  will  allow  an  amendment 
even  at  the  hearing, —  indeed,  will  order  it  on  its  own  mo- 
tion. 

In  Hvffman  v.  Hummer  ^  it  was  said  :  "  In  mere  matters  of 
form,  clerical  mistakes,  or  verbal  inaccuracies,  great  indulgence 
is  shown  in  allowing  amendements  even  in  sworn  answers. 
But  applications  to  amend  in  material  facts,  or  to  change 
essentially  the  grounds  taken  in  the  original  answer,  are 
granted  with  great  caution,  and  only  where  it  is  manifest  that 
the  purposes  of  substantial  justice  require  it."  And  where  it 
appeared  that  all  the  necessary  parties  were  not  before  the 
court,  it  was  held  that  the  court  might  arrest  the  cause  at  any 
time  and  order  the  bill  to  be  amended,  and  within  the  discre- 
tion of  the  court  the  costs  might  be  awarded.^  The  courts 
generally  concur  in  the  opinion  "that  the  ends  of  justice 
should  never  be  sacrificed  to  mere  form,  or  by  too  rigid  an 
adherence  to  technical  rules  of  practice."  The  courts  will 
always  keep  in  mind  that  it  is  a  court  of  equity  and  will  seek 
to  do  equity,  not  regardless  of  the  forms  of  pleading,  but,  dis- 
regarding technical  rules  and  precedents,  will  amend  the  plead- 
ings to  conform  to  the  case  which  actually  exists  and  appears 
by  the  evidence.  The  court  will  proceed,  however,  with  care 
and  caution,  always  requiring  that  the  case  be  an  equitable  one 
and  that  enough  appears  to  show  that  the  amendment  would 
be  just,  and  will  see  to  it  that  no  injustice  is  done  to  the  opposite 
party.  And  where  there  has  been  great  delay  in  moving  for 
the  amendment,  or  when  the  amendment  would  change  the 
case  made  by  the  original  bill  and  to  which  the  opposite  party 
has  directed  his  proof,  the  court  will  generally  refuse  to  amend, 
but  will  permit  a  decree  to  be  entered  dismissing  the  bill  with- 
out prejudice,  or,  in  the  discretion  of  the  court,  will  grant  an 
amendment  upon  payment  of  the  costs.' 

1 17  N.  J.  Eq.  263,  271.  however,  in  which  this  will  be  done 

.2Cabeen  v.  Gordon,  1  Hill,  Eq.  (S.  are  confined  to  those   where  it  ap- 

C.)  51.  pears,  from  the  case   made  by  the 

3  Hardin  v.  Boyd,  113  XJ.  S.  756,  761;  bill,  that  the  plaintiff  is  entitled  to 

Lyon  V.  Talmadge,  IJohns.  Ch.  (N.  Y.)  relief,  although  different  from  that 

184, 188;  Richmond  v.  Irons,  121  U.  S.  sought  by  the  specific  prayer;  where 

27,47;  Allis  V.  Withlacoochee  Lum-  the  object  of  the  proposed  amend- 

ber  Co.,  44  U.  S.  C.  C.  A.  673.    1  Danl.  ment  is  to  make  a  new  case,  it  will 

Ch.  PI.  &  Pr.  384:    "The  instances,  not  be  permitted." 


32C  AMENDMENTS,    SUPPLEMENTAL    PLEADINGS,  ETC.         [§  240. 

§  246.  Amendments  rest  largely  in  the  discretion  of  tlio 
court.— It  would  be  impossible  to  lay  down  any  fixed  or  defi- 
nite rule  governing  amendments;  their  allowance  must  of 
necessity  rest  in  the  discretion  of  the  court,  depending  upon 
the  special  circumstances  of  the  case  in  which  the  application 
is  made.  The  courts,  however,  will  exercise  great  latitude  in 
allowing  amendments  so  as  to  develop  the  real  issues  in  the 
cause,  and  permit  the  merits  of  the  controversy  to  be  passed 
upon.'  As  was  said  in  Church  v.  Jlolcomh,-  "the  rules  for 
amendment  are  exceedingly  liberal  when  justice  will  thereby 
be  done  and  wrong  prevented.  A  necessary  party  is  often 
permitted  to  be  added  at  the  hearing;  and  even  on  appeal  the 
case  may  be  remanded  for  the  purpose.  A  bill  for  specific 
performance  is  sometimes  permitted  to  be  converted  into  a 
bill  to  rescind  when  it  is  manifest  from  the  evidence  that  such 
should  have  been  the  relief  prayed  for. 

In  Sanhorn  V.  Sanborn^  leave  to  change  a  bill  for  specific 
performance  into  a  bill  for  relief  on  the  ground  of  fraud 
seems  to  have  been  denied  only  because  jurisdiction  in  cases 
of  fraud  had  been  conferred  on  the  court  since  suit  was 
brought.  Also  in  Drew  v.  Beard,*  an  amendment  to  bring 
new  transactions  into  an  accounting  in  a  partnership  case  was 
allowed  at  the  hearing. 

In  Gregff  v.  Brower^  it  was  said  that  "  whilst  it  is  generally 
conceded  that  amendments  with  reference  to  the  furtherance 
of  justice  are  allowed  with  great  liberality  until  the  proofs  are 
closed,  and  where  the  bill  is  not  upon  oath,  yet  greater  caution 
is  exercised  in  regard  to  amendments  of  a  bill  sworn  to.  .  .  . 
Where  the  object  of  the  amendment  is  to  let  in  a  new  fact 
there  is  greater  reluctance  on  the   part  of  the  court  to  allow 

1  Field  V.  Middlesex  Banking  Co.,  MOT  Mass.  64;  Darlington's  Appeal, 
77  Miss.  180.  26  So.  365;  Allis  v.  With-  86  Pa.  St  512.  In  the  Tremolo  Pat- 
lacoochee  Lumber  Co.,  44  U,  S.  C.  C.  ent.  23  Wall.  (U.  S.)  518,  an  amend- 
A.  673.  ment  was  allowed  after  the  decree 

2  45:^lich.  29,  39;  Lewis  v.  Darling,  which  changed  the  character  of  the 
16  How.  (U.  S.)  1;  Palmer  v.  Rich.  12  bill  from  one  reiving  upon  a  patent 
Mich.  414;  Parrill  v.  McKinley,  9  to  one  based  upon  a  reissue,  it  being 
Grat.  (Va.)  1;  Hewett  v.  Adams,  50  manifest  that  the  merits  had  been 
Me.   271;    Whelan    v.   Sullivan,   102  fully  gone  into. 

Mass.  204.  6  67  III  525,  527. 

•  7  Gray  (Mass.),  142. 


§  246.]        AMENDMENTS,  SUPPLEMENTAL   PLEADINGS,  ETC.  327 

the  amendment  when  it  depends  upon  parol  proof  than  when 
it  depends  on  written  instruments  omitted  by  accident  or 
mistake;  and  if  the  fact  was  known  to  the  complainant  at  the 
time  of  filing  his  bill,  such  an  amendment  will  not  be  allowed 
unless  some  excuse  is  given  for  the  omission  ;i  nor  when  the 
matter  with  reasonable  diligence  might  have  been  inserted  in 
the  original  bill."  ^ 

Where  an  amendment  was  allowed  after  a  cause  had  been 
heard,  it  was  claimed  that  the  power  of  allowing  amendments 
ceased,  or  if  it  existed  at  all  it  did  not  go  so  far  as  to  author- 
ize the  plaintiff  to  change  the  framework  of  his  bill  and  make 
an  entirely  new  case,  although  upon  the  same  subject-matter, 
as  was  claimed  to  have  been  done  in  that  instance  under  leave 
to  amend.     The  appellate  court  in  its  opinion  said:    "This 
doctrine  would  deny  to  a  court  of  equity  the  power  to  grant 
amendments  after  the  cause  was  heard  and  before  decree  was 
passed,  no  matter  how  manifest  it   was  that  the  purposes  of 
substantial  justice  required  it,  and   would,  if  sanctioned,  fre- 
quently embarrass  the  court  in  its  efforts  to  adjust  the  proper 
mode  and  measure  of  relief.     To  accomplish  the  object  for 
which  a  court  of  equity  was  created,  it  has  the  power  to  adapt 
its  proceedings  to  the  exigency  of  each  particular  case,  but  this 
power  would  very  often  be  ineffectual  for  the  purpose,  unless 
it  also  possessed  the  additional  power,  after  a  cause  was  heard 
and  a  case  for  relief  made  out,  but  not  the  case  disclosed  by 
the  bill,  to  allow  an  alteration  of  the  pleadings  on  terms  that 
the  party  not  in  fault  would  have  no  reasonable  ground  to 
object  to.     That  the  court  has  this  power  and  can,  upon  hearing 
the  cause,  if  unable  to  do  complete  justice  by  reason  of  defect- 
ive pleadings,  permit  amendments,  both  of  bills  and  answers, 
is  sustained  by  the  authorities." ' 

1  Whitmarsh  v.  Campbell,  2  Paige  character  and  extent  of  the  injury 
(N  Y.)-  67.  under  the  circumstances  of  the  case 

2  North  American  Coal  Co.  v.  Dyett,  were  properly  allowed  even  upon  the 
2  Edw.  Ch.  (N.  Y.)  115;  McMann  v.  hearing.  "The  complainants  found 
Westcott,  47  Mich.  177.  much   difficulty  in  getting  at  the 

3  Neale  v.  Neales,  9  Wall.  (U.  S.)  1,  actual  facts  until  the  testimony  was 
a  In  Morrison  v.  Mayer,  63  Mich,  taken  and  concluded,  notwithstand- 
238,  249,  it  was  held  that  the  amend-  ing  they  were  within  the  knowledge 
ments  made  to  the  complainant's  of  the  defendants.  In  such  a  case 
bill  to  allow  relief  according  to  the  the  discretion  of  the  circuit  judge 


328  AMENDMENTS,  SUPPLEMENTAL    PLEADINGS,  ETC.         [§  24:7. 

§  247.  When  the  pleadings  are  verified.— When  the  appli- 
cation is  to  amend  a  pleading  that  has  been  verified  the  court 
will  exercise  greater  caution  in  allowing  the  amendment.  And 
if  the  facts  proposed  by  the  amendment  are  not  consistent 
with  the  allegations  in  the  original  bill,  as  a  general  rule  it 
will  not  be  allowed,  unless  it  can  be  shown  clearly  to  the  sat- 
isfaction of  the  court  that  the  facts  as  alleged  in  the  original 
were  the  result  of  mistake  or  surprise,  or  unless  the  facts  pro- 
posed by  the  amendment  are  in  addition  to  the  facts  alleged 
in  the  original  bill  and  consistent  therewith;  such  amendment 
should  be  made  by  filing  an  amended  bill. 

The  vice-chancellor,  in  Verplanck  v.  Insurance  Co.^'^  said: 
"Another  and  more  important  reason  for  holding  a  strict  hand 
over  the  privilege  of  amending  sworn  pleadings  is  to  check 
all  temptation  to  falsehood  or  perjury,  by  not  permitting  a 
party  who  has  once  made  his  allegations  or  statements  under 
oath  to  come  in  at  any  time  and  expunge  the  same  or  substi- 
tute other  and  different  matter.  If,  indeed,  it  clearly  appears 
there  has  been  a  mistake  arising  from  inadvertency  or  acci- 
dent, and  that  the  statement  is  not  what  the  party  thought  it 
was  or  intended  it  should  be  at  the  time  of  swearing  to  the 

will  be  tolerated  to  any  extent  by  De  Lacy  v.  Hurst,  83  Ga.  223.  9  S.  E. 
way  of  allowing  amendments  in  any  1052;  Wise  v.  Twiss,  54  III.  301;  Bel- 
respect  necessary  to  secure  the  ends  linger  v.  Lehman,  103  Ala.  385,  15  Sa 
of  justice  and  the  equitable  rights  of  600;  Home  Ins.  Co.  v.  Nobles,  63  Fed. 
the  parties.     No  technical   rules  of  641. 

either  pleadings  or  practice  will  be  1 1    Edw.  Ch.   (N.   Y.)  46,    53L    In 

applied  by  this  court,  when  the  case  Swift  v.  Eckford,  6  Paige,  22,  it  was 

is  tuUy  before  us,  the  effect  of  which  held  that  a  bill  cannot  be  amended 

would   be  to  defeat    the  rights  of  by  striking  out,  where  it  had  been 

parties."    Byers    v.    Coal    Co.,    106  sworn  to,  except  under  very  special 

Mass.  131;  Vermont,  etc.  Co.  v.  Bank,  circumstances  which  must  be  shown 

44  Vt  489;  Jameson  v.  Deshields,  3  to  the  court.     And  in  Rogers  v.  De- 

Grat.  (Va.)  4;  Holland  v.  Trotter,  23  Forest,  3  Edw.  Ch.  (N.  Y.)  171,  it  was 

Grat    136;   Belton   v.    Apperson,   26  held  that  the  matter  proposed  as  an 

Grat.  (Va.)  207;  Yates  v.  Law,  86  Va.  amendment  in  a  petition  for  leave  to 

117,  9  S.  E.  508;   Orton  v.  Knab,  3  amend  a  sworn    bill  should   be  an- 

Wis.  509;  Hunt  v.  Wickliffe,  27  U.  S.  nexed  to  the  petition  and  sworn  to  in 

(2  Pet.)  201;  Wynne  v.  Alford,  29  Ga,  addition  to  the  usual  jurat  on  the 

694.     In  McDougald  V.  Williford,  14  petition.    In  Ogden  v.  Moore,  95  Mich. 

Ga.  665,  it  was  held  that  a  bill  might  290,  it  was  held  that  facts  inconsist- 

be  amended  for  the  correction  of  ent  or  repugnant  to  the  allegations 

mistakes,  the  suppression  of  impol-  of  the  original  bill  cannot  be  intro- 

itic  admissions  and  other  purposes,  duced  by  amendment. 


§  248.]         AMENDMENTS,  SUPPLEMENTAL    PLEADINGS,  ETC. 


329 


pleading,  the  court  will  permit  him  to  amend  upon  discovery 
of  the  error.  But,  even  in  such  cases,  the  court  will  not  suf- 
fer the  amendment  to  be  made  by  striking  out  any  part  of  the 
pleading.  It  can  only  be  done  by  introducing  an  additional 
or  supplemental  statement  explaining  and  correcting  the  for- 
mer erroneous  one." 

But  where  an  answer  had  been  found  to  be  insuflficient  on 
exceptions  thereto,  it  was  held  that  a  verified  bill  might  be 
amended  by  adding  material  allegations  of  fact  that  had  come 
to  the  knowledge  of  the  complainant  subsequent  to  the  draw- 
ing of  the  bill  if  such  amendments  were  not  to  be  used  to  sus- 
tain an  injunction  which  had  already  been  issued.^  But  an 
injunction  bill  which  has  been  sworn  to  cannot  be  amended 
by  striking  out  material  and  substantive  matter,  statements, 
allegations  or  charges.  It  may  be  amended  by  inserting  addi- 
tional facts  in  relation  to  the  same  subject-matter  alleged  in 
the  bill,  or  which  existed  before  the  filing  of  the  bill,  by  leave 
of  the  court,  or  by  additional  or  explanatory  statements,  and 
it  is  said  that  this  rule  applies  as  well  to  all  sworn  bills  as  to 
injunction  bills.  The  reason  for  this  is  apparent:  it  is  pre- 
sumed that  the  injunction  was  issued  because  of  the  sworn  al- 
legations of  fact  in  the  bill,  and  upon  these  facts  the  writrests.^ 

§  248.  As  to  matters  occurring  after  filing  the  original 
bill.—  As  a  general  rule  it  may  be  said  that  matters  which  have 
occurred  since  the  filing  of  the  original  bill  cannot  be  introduced 
by  way  of  amendment  if  the  defendant  has  answered  the  bill. 
This,  as  we  shall  see,  can  only  be  taken  advantage  of  by  filing 
a  supplemental  bill,  but  before  the  bill  has  been  answered  the 
complainant  may  amend  by  alleging  the  new  matter;  for  until 
the  defendant  has  filed  his  answer  such  amendments  would  be 
no  inconvenience  to  him.'    And  then,  too,  the  complainant 

1  Renwick  v.  Wilson,  6  Johns.  Ch.  that  before  any  court  of  equity 
gl^  should    allow    such    amended    an- 

2  Walker  v.  Walker,  3  Ga.  (3  Kelly),  swers  it  should  be  perfectly  satisfied 
302;  Marble  v.  Bon  hotel,  35  IlL  240;  that  the  reasons  assigned  for  the  ap- 
Carey  V.  Smith,  11  Ga.  539.  plication  are  cogent  and  satisfactory; 

3  Story,  Eq.  PI.,  sec.  884  In  Hoff-  that  the  mistakes  to  be  corrected,  or 
man  v.  Hummer,  17  N.  J.  Eq.  263,  the  facts  to  be  added,  are  made 
271,  the  court  say:  "In  Smith  v.  highly  probable,  if  not  certain;  that 
Babcock,  3  Sumn.  (U.  S.)  583,  Mr.  they  are  material  to  the  merits  of 
Justice  Story  said:  '  It  seems  to  me  the   case  in  controversy;  that  the 


330 


AMENDMENTS,  SUPPLEMENTAL    PLEADINGS,  ETC.         [§  249^. 


having  the  case  entirely  under  his  own  control  may  add  to  it 
any  new  matter  he  may  desire,  for  the  case  made  by  th© 
amended  bill  is  the  case  the  defendant  would  be  called  upon 
to  answer. 

§  249.  When  application  should  be  made  to  amend. — The 
application  to  amend  should  be  made  before  the  case  is  at  issue, 
especially  if  it  is  by  the  defendant  to  amend  his  answer.  The 
cause  is  said  to  be  at  issue  when  the  replication  is  filed.  The 
replication  contests  the  answer,  and  after  the  answer  is  con- 
tested no  new  position  should  be  taken. ^     It  is  the  duty  of  the 


party  has  not  been  guilty  of  gross 
negligence;  and  that  the  mistakes 
have  been  ascertained,  and  the  new 
facts  have  come  to  the  knowledge 
of  the  party  since  the  original  an- 
swer was  put  in  and  sworn  to.'  And 
this  language  is  quoted  with  appro- 
bation by  the  chancellor  in  1  Stockt. 
451.  Does  the  defendant  bring  his 
application  within  the  operation  of 
the  rule  as  thus  stated  ?  It  is  clear 
that  the  mistake  in  the  case  now 
under  consideration  has  not  been  as- 
("ertained.  and  that  no  new  fact  has 
come  to  the  knowledge  of  the  de- 
fendant, since  the  answer  was 
sworn  to.  Every  fact  now  within 
the  knowledge  of  the  defendant 
was  known  to  him  at  the  time  of 
putting  in  the  answer,  and  it  would 
tend  to  the  encouragement  of  gross 
negligence  to  permit  a  defendant  to 
remould  an  answer  to  the  truth  of 
which  he  had  sworn,  with  a  full 
knowledge  of  all  the  facts.  Bannon 
V.  Comegys'  Adm'r  et  al.,  69  Md.  411; 
Nichols  V.  Rogers,  139  Mass.  146. 

In  Hammond  v.  Place,  Harr.  Ch. 
(Mich.)  438,  the  court  say:  "It  is  a 
well  settled  rule  also  that  facts 
which  have  transpired  since  the 
commencement  of  the  suit  cannot 
be  set  forth  by  way  of  amendment 
to  the  original  bill.  If  the  complain- 
ants wish  to  take  advantage  of  any 
such  facts  they  must  do  it  by  a  sup- 
plemental bill.     An  amended  bill  re- 


lates back  to  the  time  when  the 
original  bill  was  filed,  and  it  is  con- 
sidered but  one  bill  and  cannot  be 
separated." 

1  Story,  Eq.  PL,  sec.  886,  etc. 

Judge  Story,  in  his  work  on  Equity 
Pleading,  at  section  889,  says:  "The 
original  rule,  as  to  the  time  of  allow- 
ing amendments,  was  probably  bor- 
rowed from  the  civil  law,  according 
to  which  the  plaintiff,  by  the  leave 
of  the  court,  might  add  any  new  po- 
sitions to  the  libel  before  the  repli- 
cation was  filed;  for  the  replication 
was  the  contestation  of  the  answer. 
And  after  the  answer  was  contested, 
there  could  be  no  new  positions;  but 
the  parties  went  immediately  to  the 
proof &" 

United  States  Equity  Rule  28: 
"The  plaintiff  shall  be  at  liberty,  as 
a  matter  of  course,  and  without  pay- 
ment of  costs,  to  amend  his  bill,  in 
any  matters  whatsoever,  before  any 
copy  has  been  taken  out  of  the  clerk's 
office,  and  in  any  small  matters  af- 
terwards, such  as  filling  blanks,  cor- 
recting errors  of  dates,  misnomer  of 
parties,  misdescription  of  premises, 
clerical  errors,  and  generally  in  mat- 
ters of  form.  But  if  he  amend  in  a 
material  point  (as  he  may  do  of 
course)  after  a  copy  has  been  so 
taken,  before  any  answer  or  plea  or 
demurrer  to  the  bill,  he  shall  pay  to 
the  defendant  the  costs  occasioned 
thereby,  and   shall,  without   delay. 


§  249.]         AMENDMENTS,  SUPPLEMENTAL    PLEADINGS,  ETC.  331 

party  to  move  promptly  when  aware  of  the  necessity  of  mak- 
ing the  application.  Laches  on  the  part  of  either  party  is  looked 
upon  with  disfavor  by  courts  of  equity  and  may  be  sufficient, 


furnish  him  a  fair  copy  thereof,  free 
of  expense,  with  suitable  references 
to  the  places  where  the  same  are  to 
be  inserted.  And  if  the  amendments 
are  numerous,  he  shall  furnish,  in 
like  manner,  to  the  defendant,  a 
copy  of  the  whole  bill  as  amended; 
and  if  there  be  more  than  one  de- 
fendant, a  copy  shall  be  furnished  to 
each  defendant  affected  thereby." 

United  States  Equity  Rule  29: 
"  After  an  answer,  or  plea,  or  demur- 
rer is  put  in,  and  before  replication, 
the  plaintiff  may,  upon  motion  or 
petition,  without  notice,  obtain  an 
order  from  any  judge  of  the  court  to 
amend  his  bill  on  or  before  the  next 
succeeding  rule-day,  upon  payment 
of  costs  or  without  ])ayment  of  costs, 
as  the  court  or  a  judge  thereof  may 
in  his  discretion  direct.  But  after 
replication  filed,  the  plaintiff  shall 
not  be  permitted  to  withdraw  it  and 
to  amend  his  bill,  except  upon  a 
special  order  of  a  judge  of  the  court, 
upon  motion  or  petition,  after  due 
notice  to  the  other  party,  and  upon 
proof  by  affidavit  that  the  same  is 
not  made  for  the  purpose  of  vexation 
or  delay,  or  that  the  matter  of  the 
proposed  amendment  is  material, 
and  could  not  with  reasonable  dili- 
gence have  been  sooner  introduced 
into  the  bill,  and  upon  the  plaintiff's 
submitting  to  such  other  terms  as 
may  be  imposed  by  the  judge  for 
speeding  the  cause." 

United  States  Equity  Rule  30:  "If 
the  plaintiff  so  obtaining  any  order 
to  amend  his  bill  after  answer,  or 
plea,  or  demurrer,  or  after  replica- 
tion, shall  not  file  his  amendments 
or  amended  bill,  as  the  case  may  re- 
quire, in  the  clerk's  office  on  or  be- 
fore the  next  succeeding  rule-day, 
he  shall  be  considered  to  have  aban- 


doned the  same,  and  the  cause  shall 
proceed  as  if  no  application  for  any 
amendment  had  been  mada" 

As  to  amendment  of  answer  — 
(United  States  Equity  Rule  60): 
"  After  an  answer  is  put  in,  it  may 
be  amended,  as  of  course,  in  any 
matter  of  form,  or  by  filling  up 
a  blank,  or  correcting  a  date,  or 
reference  to  a  document,  or  other 
small  matter,  and  be  resworn,  at 
any  time  before  a  replication  is  put 
in,  or  the  cause  is  set  down  for  a 
hearing  upon  bill  and  answer.  But 
after  replication,  or  such  setting 
down  for  a  hearing,  it  shall  not  be 
amended  in  any  material  matters, 
as  by  adding  new  facts  or  defenses, 
or  qualifying  or  altering  the  original 
statements,  except  by  special  leave 
of  the  court,  or  of  a  judge  thereof, 
upon  motion  and  cause,  after  due 
notice  to  the  adverse  party,  sup- 
ported, if  required,  by  affidavit;  and 
in  every  case  where  leave  is  so 
granted,  the  court  or  the  judge 
granting  the  same  may,  in  his  dis- 
cretion, require  that  the  same  be 
separately  engrossed,  and  added  as 
a  distinct  amendment  to  the  original 
answer,  so  as  to  be  distinguishable 
therefrom." 

Where  a  cause  had  been  pending 
for  several  years  and  was  finally 
brought  to  hearing  which  lasted  for 
several  days,  and  oral  arguments 
were  made  and  written  briefs  after- 
wards submitted,  a  decision  arrived 
at  and  a  draft  of  a  proposed  decree 
submitted,  the  defendants  made  an 
application  to  amend  their  answer 
by  withdrawing  repeated  admis- 
sions as  to  citizenship  as  alleged  by 
the  complainants,  and  sought  to  sub- 
stitute averments  showing  that  they 

were  citizens  of  a  different  state, 


332 


AMENDMENTS,  SUPPLEMENTAL    PLEADINGS,  ETC.         [§  249. 


if  it  is  gross  and  without  excuse,  to  overcome  the  leniency  of 
the  court  in  granting  amendments.^ 

The  theory  of  granting  amendments  is  that  the  original 
pleading  contains  all  of  the  material  facts  necessary  to  be 
stated  that  existed  at  the  time  the  pleading  was  drafted  and 
filed;  that  new  matter,  that  is,  facts  happening  after  the  plead- 
ing was  filed,  must  be  introduced  by  supplemental  pleading, 
for  they  cannot  be  considered  as  facts  bearing  upon  the  case 
at  the  time  the  pleading  was  drawn.  And  where  facts  within 
the  complainant's  knowledge  before  the  filing  of  the  bill  were 
made  the  basis  of  a  supplemental  bill,  it  was  held  that  the  bill 
would  be  demurrable  so  far  as  based  upon  such  facts;  that  such 
facts  being  within  the  complainant's  knowledge  at  the  time  of 
filing  the  original  bill  should  be  introduced  by  application  to 
amend  the  bill.'^ 

So  where  a  bill  to  foreclose  a  mortgage  securing  bonds 
equitably  owned  by  the  complainant  is  without  equity  for  the 
reason  that  it  does  not  aver  that  at  the  time  of  filing  the  bill 
the  mortgage  was  due,  and  in  fact  it  was  not  due,  it  was  held 


-which  if  allowed  would  defeat  the 
jurisdiction  of  the  court,  it  appear- 
ing that  the  defendants  were  con- 
versant with  such  facts  from  the 
beginning,  and  it  further  appear- 
ing doubtful  whether  complainant 
would  be  able,  because  of  lapse  of 
time,  to  bring  a  new  suit  in  a  state 
court,  it  was  held  that  the  court  in 
the  exercise  of  its  discretion  would 
not  permit  defendants  to  amend 
their  answer  as  proposed.  Gubbins 
V.  Laughtenschlager,  75  Fed,  615. 

1  Where  an  application  to  file  an 
amended  answer  and  cross-bill  is 
made  long  after  the  cause  is  at  issue 
on  the  original  pleadings,  and  but  a 
few  days  prior  to  the  time  the  evi- 
dence in  the  case  is  to  be  closed,  the 
granting  of  the  application  was  held 
to  be  within  the  court's  discretion, 
who  would  consider  the  probability 
of  the  defendant  being  able  to  sup- 
port his  new  averments  after  a  care- 
ful examination  of  the  legal  suffi- 
ciency of  the  facts  averred  and  con- 


sidering the  evidence  already  taken 
before  granting  such  an  application. 
Ritchie  v.  McMullen,  25  a  C.  A.  50, 
79  Fed.  522.  But  in  Johnston  v. 
Grosvenor,  105  Tenn.  353,  370,  where 
more  than  four  years  had  elapsed 
after  the  filing  of  the  original  bill 
and  the  answer  thereto,  an  amend- 
ment was  allowed  and  held  by  the 
supreme  court  not  to  be  such  an 
abuse  of  discretion  as  to  demand  re- 
versal. Where  it  appeared  on  motion 
to  amend  by  adding  new  parties 
defendant  after  the  replication  and 
the  production  of  evidence  that  the 
plaintiff  had  been  in  position  to 
make  the  amendment  at  an  earlier 
stage,  the  application  for  amend- 
ment was  denied.  Clifford  v.  Cole- 
man, 13  Blatchf.  (U.  S.)  210;  Ingra- 
hamv.  Bunnell,  5  Mete.  (Mass.)  118; 
Marr  v.  Wilson,  70  Tenn.  229  (2  B.  J. 
Lea,  299). 

2  Commercial  Assur.  Co.  v.  New 
Jersey  Rubber  Co.,  61  N.  J.  Eq.  446, 
49  AtL  155. 


§  250.]        AMENDMENTS,  SUPPLEMENTAL   PLEADINGS,  ETC.  333 

that  the  defect  could  not  be  cured  by  an  amendment  averring 
facts  of  a  supplemental  nature  which  did  not  exist  when  the 
bill  was  filed. ^ 

In  Martin  v.  Aikinson^  the  court  held  that  amendments  to 
sworn  answers  should  be  granted  with  great  caution;  that  they 
might  be  allowed  in  cases  of  mistake,  fraud,  surprise,  or  the 
discovery  of  new  matter,  but  that  there  is  no  general  rule 
governing  their  allowance;  that  the  application  is  always  ad- 
dressed to  the  sound  discretion  of  the  court,  each  case  depend- 
ing upon  its  own  merits. 

In  Dearth  v.  National  Banh^  it  was  held  that  an  amend- 
ment to  a  sworn  answer  would  not  be  allowed  if  it  stated  in- 
correctly facts  admitted  to  be  true. 

If  the  party  be  an  infant,  however,  courts  will  especially  care 
for  their  interests,  and  will  not  only  allow  amendments  in 
furtherance  of  their  rights,  but  will  even  at  the  hearing  of  the 
proof  protect  them  under  the  pleadings  filed,  or,  if  necessary,, 
amend  the  pleading  on  their  own  motion.* 

§  250.  When  ameudmeuts  of  the  bill  will  be  allowed.— 
As  to  facts  existing  at  the  time  the  original  bill  was  drawn 
and  filed,  amendments  of  the  pleadings  in  an  equity  case  will 
be  allowed  at  any  time  before  the  issue  is  made  up  —  after  the 
cause  is  at  issue  at  the  hearing,  and  even  after  the  hearing  if 
the  ends  of  justice  demand  it;  the  granting  of  the  application 
always  resting  in  the  sound  discretion  of  the  court.  More 
leniency  is  said  to  be  extended  in  granting  amendments  of  the 
bill  of  complaint  than  any  other  pleadings,  and  yet  it  seems, 
after  consulting  the  adjudicated  cases,  that  amendments  to  the 
bill  rests  in  the  urgent  demands  of  justice  in  the  particular 
case,  which  is  really  the  same  ground  upon  which  amendments 

1  Sheerer  v.  Agee,  113  Ala.  383,  21  example,  to  correct  a  verbal  or  cler- 
So.  81;  Seattle,  etc.  Ry.  Co.  v.  Union  ical  mistake,  or  to  amend  or  supply 
Trust  Co.,  24  C.  C.  A.  (U.  S.)  513,  79  a  formal  defect;  but  if  further 
Fed.  179.  amendments  are  desired,  a  supple- 
25  Ga.  390.  mental  answer  must  be  filed,  which- 
3 100  Mass.  540,  In  Burgin  v.  Gib-  would  be  permitted  after  replication 
erson,  23  N.  J.  Eq.  403,  it  was  held  and  even  after  complainant  has 
that  an  amendment  would  not  be  commenced  to  take  evidence.  Huff- 
permitted  to  an  answer  after  it  had  man  v.  Hummer,  17  N.  J.  Eq.  269. 
been  sworn  to  and  filed  in  the  cause  *  Story,  Eq.  PI.,  sec.  89'3. 
except  for  formal  mistakes.     As  for 


334  AMENDMENTS,  SUPPLEMENTAL    PLEADINGS,  ETC.         [§   250. 

to  other  pleadings  are  allowed.  "VVe  have  already  considered 
amendments  prior  to  the  joining  of  issue,  but  the  courts  go 
very  much  farther  than  this  and  permit  the  bill  to  be  amended 
upon  the  hearing,  or  even  after  a  decree  has  been  granted. 

In  Ogden  v.  Thornton  '  it  was  held  that  the  bill  of  complaint 
might  be  amended  at  the  hearing;  the  court  holding  that  it 
was  not  driven,  by  any  inflexible  rule  of  practice  or  stern  def- 
erence to  a  mere  formality,  to  the  hard  duty  of  thrusting  the 
complainant  from  its  presence,  remediless  and  mulcted  in  costs, 
being  fully  persuaded  that  complainant  had,  upon  the  undis- 
puted facts,  a  case  founded  in  the  highest  equity,  and  which 
it  is  the  peculiar  duty  of  a  court  of  conscience  to  recognize  and 
redress.  "  Such  a  result  would  prostrate  justice  to  preserve  a 
mere  matter  of  technical  form.  If  possible,  the  court  must  not 
allow  justice  to  be  defeated  and  wrong  to  triumph,  by  a  mere 
mistake  or  unskilfulness  in  pleading.  A  court  of  equity  must 
always  aim  to  act  upon  broad  principles  of  justice,  disentangled 
as  much  as  possible  from  little  technicalities.  .  .  .  The 
power  of  the  court  to  order  an  amendment,  even  on  final  hear- 
ing, is  unquestionable,  but  it  is  a  power  never  exercised,  except 
when  the  ends  of  justice  render  it  absolutely  necessary,  and  its 
exercise  will  not  suLotantially  impair  or  abridge  the  right  of 
defense.  .  .  .  Even  appellate  tribunals  will  reverse  an 
order  or  decree  and  send  a  cause  back  to  the  court  having 
original  jurisdiction,  in  order  that  an  amendment  may  be  made, 
so  that  the  real  merits  of  the  controversy  may  be  settled. 
Where,  upon  final  hearing,  the  court  has  the  whole  case  before 
it,  but  is  embarrassed  by  defects  in  the  pleadings,  it  may  per- 
mit both  the  bill  and  answer  to  be  amended." 

The  court  will,  however,  at  all  times  in  the  ffrantins"  of 
amendments  be  governed  by  equity  and  good  conscience 
toward  the  defendant  as  well  as  the  plaintiff,  and  will  not 
allow  amendments  that  will  in  any  way  abridge  the  right  of 
defense,  or  occasion  such  surprise  to  the  adverse  party  as  to 
imperil  or  affect  his  case. 

In  Moshier  v.  Knox  College  ^  the  court  say :  "  The  reason  of 

130  N.  J.  Eq.  569,  572;  Armstrong  at  the  hearing.     Munch  v.  Shabel,  37 

V.  Ross,  5  C.  E.  Green  (N.  J.  Eq.),  109.  Mich.    166;    Morrison    v.   Mayer,    63 

Amendments  to  meet  matter  set  up  Mich.  238. 

in  the  answer  held  to  be  proper  even  ^  33  m.  155^  164;  Russell  v.  Martin 


§  250.]         AMENDMENTS,  SUPPLEMENTAL    PLEADINGS,  ETC.  335 

the  rule  that  material  amendments  should  not  be  made  on  the 
hearing  of  a  cause  is  that  they  may  surprise  the  adverse 
party."  But  further  held  that,  where  no  new  matter  was  in- 
troduced by  the  amendment,  the  defendant  could  not  be  said 
to  be  surprised,  and  where  the  character  of  the  controversy  is 
not  changed  the  amendment  will  be  allowed. 

In  Gordon  v.  Reynolds  ^  it  was  held  that  it  was  not  error,  but 
a  practice  highly  commendable  and  absolutely  necessary  in  a 
great  many  cases  to  a  proper  administration  of  justice,  to  allow 
amendments  at  the  hearing;  that  "  it  is  not  material  when  such 
amendments  are  made,  except  as  to  the  terms  the  court,  in  its 
discretion,  might  see  proper  to  impose  as  a  condition  to  per- 
mitting the  amendment.  Usually  these  amendments  are  made 
after  the  evidence  is  all  in  and  the  variance  is  brought  out  in 
the  course  of  the  argument,  and  it  sometimes  occurs  that 
several  amendments  of  this  nature  and  for  this  purpose  are 
made  at  different  times  during  the  final  argument  of  the  case. 
These  amendments  are  purely  discretionary,  and  ordinarily,  in 
the  absence  of  evidence  showing  an  abuse  of  a  reasonable  dis- 
cretion, are  not  subject  to  review."  And  if  necessary  to  secure 
the  ends  of  justice  and  the  equitable  rights  of  the  parties,  the 
court  will  allow  the  prayer  of  the  bill  to  be  amended  at  the 
hearing  if  it  is  discovered  that  the  prayer  is  not  consistent 
with  the  determination  the  court  arrives  at  upon  hearing  the 
proofs.^ 

It  is  a  general  rule,  concurred  in  without  dissent,  that  the 
bill  of  complaint  may  be  amended  at  the  hearing  so  as  to  con- 
form with  the  proofs,  if  it  appears  from  the  evidence  that  the 
complainant  is  entitled  to  relief,  the  court  keeping  in  view, 
however,  the  equitable  rights  of  the  defendant.  For  while 
the   court  has  the  undoubted  power  to  order  an  amendment 

et  ux.,  3  Scam.  (111.)  492;  Hewitt  v.  v.  Marshall,  1  J.  J.  Marsh.  (Ky.)  64; 

Dement,    57    III.    500;    Morrison    v.  Lewis  v.  Darling,  16  How.  (U.  S.)  1. 
Mayer,  63  Mich.   238,  29  N.  W.  698;        1114  111.  118. 

Folkerts  v.  Power,  42  Mich.  283;  2  Morrison  v.  Mayer,  63  Mich.  23a 
O'Brien  v.  Heeney,  2  Edw.  Ch.  (N.  Y.)  In  Gralfam  v.  Burgess,  117  U.  S.  180, 
242.  It  has  been  said  that  amend,  it  was  held  that  a  bill  in  equity 
ments  to  add  proper  parties  are  might  be  amended  after  the  hear- 
never  too  late  while  the  court  has  ing  of  the  proofs  so  as  to  put  in  issue 
control  over  the  case.  Parberry  v.  matters  in  dispute  and  in  proof  that 
Goram,  3  Bibb  (Ky.),  107;  Hoofman  were  not  sufficiently  alleged  in  the 


336 


AMENDMENTS,  SUPPLEMENTAL    PLEADINGS,  ETC.         [§  251. 


upon  final  hearing,  it  will  never  be  exercised  where  it  would 
prejudice  or  abridge  the  rights  of  the  parties,  or  where  the  ends 
of  justice  do  not  render  it  necessary,  or  where  the  case  is  not 
of  such  character  that  commends  it  to  the  favorable  considera- 
tion of  the  court,  or  where  the  proofs  fail  to  convince  the  court 
that  complainant  is  entitled  to  relief.' 

§  251.  When  amendments  of  the  answer  will  be  allowed. 
If  the  application  for  amendment  of  the  answer  is  to  correct 
some  mere  matter  of  form,  or  slight  mistakes,  as  in  dates  or 
verbal  inaccuracies,  the  courts  are  very  indulgent  in  the  mat- 
ter of  allowing  amendments; ^  or  where  it  clearly  appears 
that  the  amendment  sought  for  is  material  to  the  defense  and 
necessary  to  enable  the  defendant  to  bring  the  merits  of  his 
defense  before  the  court,  leave  will  be  granted  to  amend  if 
the  amendment  is  not  inconsistent  with  or  contradictory  to  the 
allegations  of  the  answer;^  and  where  it  appeared  that  there 
was  an  omission  arising  from  the  oversight  of  the  solicitor  who 
drafted  the  answer,  which  was  not  discovered  until  the  cause 
was  ready  for  hearing,  it  was  held  that  the  court  would  grant 


original  bill.     Hardin  v.  Boyd,  113 
U.  S.  756. 

1  Midmer  v.  Midmer's  Ex'r,  26  N.  J. 
Eq.  299;  Winston  v.  Mitchell,  93  Ala. 
554,  9  So.  551.  In  Connalley  v.  Peck, 
3  Cal.  75,  it  was  held  that  an  amend- 
ment should  be  allowed  where  in  a 
bill  in  equity  the  proofs  do  not  sus- 
tain the  allegations  of  the  bill  but 
the  evidence  conclusively  shows  the 
party  entitled  to  relief.  Tryon  v. 
Sutton,  13  Cal.  490;  Hagar  v.  Whit- 
more,  83  Ma  248;  Bernard^  v.  Top- 
litz,  160  Mass.  162;  Church* v.  Hol- 
conib,  45  Mich.  29;  Goodenow  v. 
Curtis,  18  Mich.  298;  Hoyt  v.  Smith, 
27  Conn.  468;  Camp  v.  Waring,  25 
Conn.  520;  Neale  v.  Neales,  9  Wall. 
(U.  S.)  1;  Chicago,  etc  Ry.  Co.  v. 
Bank,  134  U.  S.  276;  Mix  v.  People, 
116  IlL  265,  4  N.  E.  783;  Cooper  v. 
Gum,  152  111.  471,  39  N.  E.  267;  Bel- 
lows V.  Stone,  14  N.  H.  175;  Clark  v. 
First  Cong.  Church  Soc,  46  N.  H. 
272;  Church,  etc.  v.  Hatch,  48  N.  H. 


393;  American  Bible  So&  v.  Price,  115 
111.  623;  Harrigan  v.  Bacon,  57  Vt. 
644;  Norton  v.  Parsons,  67  Vt.  526, 
32  Atl.  481;  Lamb  v.  Laughlin,  25  W. 
Va.  oOO;  Winslow  V.  Crowell,  32  Wis 
639,  662;  Doonan  v.  Glynn,  26  W. 
Va.  225;  School  District  v.  Macloon.  4 
Wis.  79;  Hitchcock  v.  Merrick,  15 
Wis.  522.  In  Van  Riper  v.  Claxton, 
9  N.  J.  Eq.  302,  it  was  held  where  the 
case  was  before  the  court  upon  de- 
fendant's proof,  that  it  would  be  too 
technical  to  turn  the  complainant 
out  of  court;  that  the  court  would, 
in  certain  cases,  allow  a  bill  to  be  so 
amended  as  to  correspond  with  the 
proofs  taken.  Howell  v.  Sebring,  14 
N.  J.  Eq.  84;  Cox  v.  Westcoat,  29 
N.  J.  Eq.  551. 

2  Smith  V.  Babcock,  3  Sumn,  (U.  S. 
C.  C.)  58a 

SBurgin  v.  Giberson,  23  N.  J.  Eq. 
403;  McMicliael  v.  Brennan,  31  N.  J. 
Eq.  496;  Tillinghast  v.  Champlin,  4 
R  I.  128. 


§  252.]        AMENDMENTS,  SUPPLEMENTAL    PLEADINGS,  ETC.  337 

leave  to  amend  the  answer  without  postponing  the  hearing  to 
await  a  formal  motion,  unless  it  would  occasion  surprise  on 
the  part  of  the  complainant;^  but  amendments  to  sworn  an- 
swers are  granted  with  greater  caution  and  are  more  difficult 
to  obtain;  but  when  the  amendment  is  sought  to  correct  a  mis- 
take, or  in  case  of  fraud  or  surprise,  the  court,  exercising  a  sound 
discretion,  will  generally  grant  the  amendment,  each  case  de- 
pending upon  its  own  merits.  Amendments,  however,  to  the  an- 
swer as  well  as  to  the  bill  must  be  applied  for  without  delay, 
exercising  reasonable  diligence  in  presenting  the  application 
to  the  court.  And  where  the  petition  to  amend  an  answer, 
so  as  to  set  up  a  defense  well  known  at  the  time  the  answer 
was  filed,  was  made  after  the  cause  had  gone  to  final  decree, 
and  the  decree  had  been  affirmed  by  the  appellate  court,  the 
application  was  denied.*  But  where  it  appeared  that  the 
plaintiff's  situation  had  not  changed  for  the  worse  because  of 
defendant's  delay,  a  motion  to  amend  the  answer  was  permit- 
ted on  payment  of  costs.' 

^  252.  Same  subject  —  At  the  hearing. —  The  answer  may 
be  amended  at  the  hearing  where  equity  and  good  conscience 
demand  it,  and  courts  will  grant  the  same  indulgence  as  to 
amendments  to  the  answer  as  in  applications  to  amend  the 
bill.  In  Tracewell  v.  Boggs,^  where  the  defendant  had  filed 
his  answer  in  the  cause  and  the  plaintiff  had  replied  to  it  and 
had  had  ample  time  to  prepare  his  defense,  but  at  the  last 
moment  came  into  court  and  asked  to  be  permitted  to  substi- 
tute another  answer  because  one  material  matter  of  defense 
which  he  desired  to  make  to  complainant's  bill  was  forgotten 
by  him  and  did  not  occur  to  his  memory  until  a  short  time 
before,  the  court  said:  "If  the  new  matter  of  defense  had 
truly  been  material,  he  should  have  been  permitted  to  have 
filed  an  amended  answer  setting  up  such  new  matter,  but  in 

1  Arnaud  v.  Grigg.  29  N.  J.  Eq.  1 ;  v.  Shew,  1  Pin.  (Wis.)  438,  42  Am. 
Ritchie  v.  McMullen,  25  C.  C.  A.  50.  79    Dea  579. 

Fed.  522;  Graves  v.  Niles,  Harr.  Ch.  3Arnoldv.ChesebrouKh,33Fed.571. 

(Mich.)    33-3;     Grim    v,    Wheeler,    3  ^U  W.   Va.    254,    '1^\;    Wyatt    v. 

Edw.  Ch.  (N.  Y.)  448.  Thompson,  10  W.  Va.  645;  Matthews 

2  United  Ry.  Co.  v.  Long  Dock  Co.,  v.  Dunbar,  3  W.  Va.  138:  Connecti- 
41  N.  J.  Eq.  407;  India  Rubber  Co.  v.  cut  Ins.  Co.  v.  Smith,  117  Mo.  261; 
Phelps,  8  Blatchf.  (U.  S.)  85;  Stout  Rogers  v.  Rogers,  15  B.  Monroe  (Ky.), 


364 


22 


333  AMENDMENTS,  SUPPLEMENTAL    PLEADINGS,  El  C.         [§  253. 

nowise  to  delay  the  hearing  of  the  cause.  But  before  a  court 
of  equity  should  allow  an  amended  answer  to  be  filed  it  should 
be  satisfied  that  the  reasons  assigned  for  it  are  cogent  and  sat- 
isfactory ;  that  the  mistakes  to  be  corrected,  or  facts  to  be 
added,  are  made  highly  probable,  if  not  certain ;  that  they  are 
material  to  the  merits  of  the  case  in  controversy;  that  the 
party  has  not  been  guilty  of  negligence;  and  that  the  mistakes 
have  been  ascertained  and  the  new  facts  have  come  to  the 
knowledge  of  the  party  since  the  original  answer  was  filed." 

Where  a  motion  to  amend  an  answer,  which  was  put  in 
without  oath,  was  made  after  a  large  amount  of  testimony  had 
been  taken  and  the  proofs  closed  and  more  than  a  year  had 
elapsed  after  the  opinion  of  the  court  had  been  filed  settling 
the  rights  of  the  parties,  and  upon  the  day  that  the  complain- 
ant asked  for  a  decree  of  reference  in  accordance  with  the 
opinion  of  the  court,  and  it  was  claimed  by  the  defendant  that 
his  answer  contained  a  plain  mistake  of  facts  which  he  had 
never  discovered  until  a  short  time  before,  alleging  that  he 
had  never  before  read  the  answer  nor  did  he  know  its  con- 
tents except  so  far  as  he  had  furnished  facts  to  his  solicitor, 
who  prepared  and  filed  it  and  supported  these  statements  by 
affidavits,  the  court  say :  "  The  defendant  knows  by  the  bill  what 
he  is  called  upon  to  answer,  and  he  must  answer,  not  only  fully 
but  truthfully  and  conscientiously,  and  that,  too,  whether  under 
oath  or  not.  Every  consideration  of  private  interest  and  public 
welfare  requires  this.  But  with  this  precaution  governing, 
not  only  in  matters  of  mere  form  have  corrections  been  al- 
lowed, but  in  other  particulars."  After  citing  and  quoting 
from  numerous  authorities  the  court  further  say:  "It  seems 
to  be  my  plain  duty  to  allow  the  amendment  asked  for."  ^ 

§  253.  Same  subject  —  After  the  hearing. —  For  the  same 
reasons  that  incline  the  courts  to  the  allowing  of  amendments 
at  the  hearing,  but  with  very  much  more  caution  and  delib- 
eration, amendments  are  allowed  even  after  the  cause  is  sub- 
mitted and  after  a  decree  has  been  rendered,  but  in  such  a  case 
the  reasons  must  be  very  urgent  and  clearly  set  forth  and 
proven;  indeed,  the  courts  are  loath  to  establish  any  rule  or 
precedent  of  this  kind,  and  generally  will  refuse  to  permit  the 

1  Welsh  V.  Arnett,  46  N.  J.  Eq.  548,  17  Atl.  289. 


§  254.]         AMENDMENTS,  SUPPLEMENTAL    PLEADINGS,  ETC.  33t> 

amendment  when  it  involves  the  taking  of  further  proof  and 
the  trial  of  the  cause  upon  a  different  theory,  and  always 
where  there  have  been  intervening  rights,  as  of  ho7ia  fide  pur- 
chasers, or  rights  obtained  without  notice  based  wholly  or  par- 
tially upon  the  decree  that  has  been  rendered  in  the  cause.^ 
And  here,  too,  the  rule  exists  that  the  party  moving  for  the 
amendment  must  not  be  guilty  of  laches;  this  is  a  general 
rule  in  all  equity  proceedings. 

In  Trader  v.  Jarvis^  the  court  say:  "  A  court  of  equity, 
which  is  never  active  in  relief  against  stale  demands,  will  al- 
ways refuse  relief  where  the  party  has  slept  upon  his  right  and 
acquiesced  for  a  great  length  of  time.  Nothing  can  call  into 
activity  this  court  but  conscience,  good  faith  and  reasonable 
diligence.  Where  these  are  wanting  the  court  is  passive  and 
does  nothing."  But  where  the  knowledge  of  the  facts  upon 
which  the  amendment  is  based  were  especially  within  the 
knowledge  of  the  opposite  party,  and  the  circumstances  were 
such  that  he  ought  to  have  voluntarily  disclosed  them,  and  it 
appeared  that  the  plaintiff  had  attempted  in  vain  to  get  a  full 
disclosure  from  the  respondent,  the  amendment,  though  a  rea- 
sonable time  had  elapsed  after  the  decree  was  rendered,  was 
allowed.'  If  the  amendment  sought  is  a  technical  error  it  will 
be  allowed  even  after  final  decree. 

In  Ehea  v.  Puryear^  an  amendment  of  a  bill  for  specific 
performance  to  correct  the  description  of  land  was  allowed 
after  the  cause  had  been  submitted  for  final  hearinsr. 

§  254.  Amendments  allowed  by  appellate  courts.— For 
the  reasons  already  mentioned  the  appellate  courts  will  often 
grant  the  privilege  of  amending  the  pleadings  and  remand 
the  case  to  the  lower  court  with  instructions  that  such  amend- 

1  Munter  V.  Linn,  61  Ala.  492;  Terry  2  23  W.  Va.  100,  108;  Bill  v.  Schil- 
V.  McClure,  103  U.  S.  442.  And  where  ling,  39  W.  Va.  108. 
an  amendment  was  sought  to  meet  3  Hoyt  v.  Smith,  27  Conn.  468;  Don- 
objections  raised  at  the  hearing  two  nelly  v.  Ewart,  3  Rich.  Eq.  (S.  C.)  18; 
months  before  the  decision  was  ren-  Pierce    v.    Kneeland,    16    Wis.   673; 
dered,    and    especially    where    the  Mason  v.  Blair,  33  111.  194. 
amendment   would    not  aflfect   the  *  26  Ark.  344;  King  v.  King,  45  Ga. 
grounds  on  which  the  decision  was  195;  Ingraham  v.  Bunnell,  5  Mete, 
based,  the  amendment  was  refused.  (Mass.)  118;  Peck  v.  Mellams,  10  N.  Y. 
Blair  v.  Harrison,  6  C.  C.  A.  326,  57  (6  Seld.)  509, 
Fed.  257. 


340  AMENDMENTS,  SUPPLEMENTAL    PLEADINGS,  ETC.         [§  255. 

ments  be  made.  As,  for  example,  if  a  demurrer  to  the  bill  is 
sustained,  the  complainant,  if  justice  and  equity  demand  it, 
would  be  permitted  to  amend  his  bill  even  in  the  appellate 
court. 

In  RiddUv.  WhitehilP  the  decree  of  the  lower  court  sus- 
taining a  demurrer  and  dismissing  the  bill  was  reversed  by 
the  appellate  court  and  remanded  with  directions  to  allow  the 
complainant  to  amend,  an  application  having  been  made  for 
leave  to  amend  before  appeal  was  taken. 

So  where  upon  the  hearing  in  the  appellate  court  it  appears 
that  the  complainant  is  entitled  to  relief,  but  in  order  to  ob- 
tain it  it  is  necessary  that  the  pleadings  be  amended  so  as  to 
admit  additional  proof;  or  where  it  appears  that  there  is  a 
want  of  proper  parties,  which,  if  supplied,  a  decree  could  be 
sustained,  in  such  cases,  where,  in  accordance  with  equity  and 
good  conscience,  a  decree  ought  to  be  granted,  the  appellate 
court  will  not  dismiss  the  cause,  but  will  remand  it  to  the 
lower  court  with  the  privilege  of  amending  the  pleadings  in 
the  particulars  necessary 

In  Palmer  v.  Eich^  the  bill  made  out  the  case  on  all  points, 
but  there  was  want  of  necessary  parties;  the  court  below 
granted  the  complainant  a  decree  as  prayed.  The  supreme 
court  on  appeal  reversed  the  decree  for  want  of  parties,  but 
granted  leave  to  amend,  and  allowed  an  injunction,  which  had 
been  decreed,  to  stand  until  the  further  order  of  the  court 
below. 

§255.  How  amendments  made. —  The  amendment  of  the 
pleading  when  allowed  should  be  stated  with  care  and  pre- 
cision in  the  order  permitting  it,  and  should  also  determine 
how  it  shall  be  made.  In  amending  pleadings  in  unimportant 
formal  matters,  as  the  correction  of  a  clerical  error,  the  strik- 
ing out  or  inserting  a  name  or  altering  a  date  by  way  of  cor- 
recting a  mistake  which  is  apparent  upon  the  face  of  the 
pleadings,  the  correction  may  be  made  by  interlineations  or 
inserting  the  amendment  in  the  margin,  but  should  be  so  done 
that  it  will  clearly  appear  what  the  amendment  is.  But  as  to 
matters  of  substance  this  course  should  not  be  pursued.  The 
party  making  the  amendment  should  draft  an  entirely  new 

1 135  U.  S.  621,  627.         3 13  Mich.  414;  Squire  v.  Hewlett,  141  Mass.  597. 


§  256.]        AMENDMENTS,  SUPPLEMENTAL    PLEADINGS,  ETC.  341 

pleading,  leaving  the  original  on  file  unaltered ;  for  besides 
the  importance  of  having  it  clearly  appear  in  what  the  amend- 
ment consisted,  it  is  very  important  to  know  what  the  allega- 
tion of  the  original  pleading  was,  and  especially  if  the  plead- 
ing is  verified.  So  important  is  this  consideration  in  case  of 
amendments  of  answers  that  courts  will  generally  insist  that 
the  original  shall  remain  intact,  for  sworn  admissions  or  state- 
ments of  fact  in  such  an  answer  may  be  very  important  at  the 
hearing  of  the  cause;  the  practice,  however,  in  this  respect  is 
largely  governed  by  the  rules  of  practice  in  the  several  chan- 
cery courts. 

The  amended  pleading  should  show  that  it  is  an  amended 
pleading,  and  if  the  original  pleading  is  sworn  to  the  amended 
pleading  should  be  verified  to  the  same  extent,  and  signed  by 
counsel,  filed  in  the  cause,  and  served  the  same  as  the  original 
pleading.^  If  the  amendment,  however,  is  to  the  prayer  of  the 
bill,  by  adding  a  new  and  proper  party  complainant,  or  if  it 
be  an  immaterial  matter  which  would  not  change  in  any  par- 
ticular the  substance  of  any  allegation  in  the  bill,  it  need  not 
be  verified. 

§  256.  The  effect  of  ameudment. —  When  a  pleading  is 
amended  it  stands  as  a  new  pleading  and  relates  back  to 
the  time  the  original  was  filed  ;^  the  original  and  amended 
pleading  being  regarded  as  one.  And  so  if  the  complainant 
amends  his  bill,  the  defendant,  although  he  may  have  an- 
swered the  original  bill  and  is  not  required  to  answer  the 
amended  bill,  may,  if  he  elects  to  do  so,  put  in  a  new  answer 
making  an  entirely  new  defense,  even  to  the  extent  of  contra- 
dicting his  former  answer.' 

The  complainant  on  filing  the  amended  bill  may  waive  a 
further  answer,  and  the  defendant  may  avail  himself  of  the 

1  Rodgers  v.  Rodgers,  1  Paige  Ch.  takes  effect  as  of  the  time  of  filing 
424;  Verplank  v.  Mercantile  Ins.  Co.,  the  original  bill.  Carey  v.  Hillhouse, 
1  Edw.  Ch.  (N.  Y.)  46;  Livingston  v.  5  Ga.  351;  Norris  v.  He,  152  111.  190, 
Marshall,  82  Ga.  281.  38  N.  E.  762,  43  Am.  St.  Rep.  233; 

2  In  Lipscomb  v.  McClellan,  72  Ala.  Hurd  v.  Everett,  1  Paige,  124;  Adams 
151,  it  was  held  that  where  the  v.  Phillips,  75  Ga.  461. 
amendment  to  a  bill  introduced  no  ^  i  Danl.  Ch.  PI.  &  Pr.  409;  Burney 
new  .subject,  but  simply  made  more  v.  Ball,  24  Ga.  505;  Bowen  v.  Idley,  6 
specific  the  charges  contained  in  the  Paige  (N.  Y.),  46;  Trust  &  Fire  Ins. 
original  bill,  such  an  amended  bill  Co.  v.  Jenkins,  8  Paige,  589. 


342  AMENDMENTS,  SUPPLEMENTAI-    PLEADINOS,  ETC.         [§  250. 

waiver;  and  if  he  does  not  answer,  his  former  answer  may 
be  taken  as  an  answer  to  the  amended  bill;  but  if  the 
complainant  does  not  waive  further  answer  and  the  amend- 
ments require  one,  in  such  case  the  complainant  would  be  en- 
titled to  it  and  defendant  must  answer.^  "When  the  complain- 
ant "  waives  the  necessity  of  a  further  answer,  if  the  defendant 
deems  it  essential  to  his  defense  to  answer  the  amendments, 
he  has  the  right  to  do  so.  And  unless  the  defendant  elects  to 
abide  by  his  former  answer  within  that  time,  the  complainant 
2iiust  wait  until  the  expiration  of  the  time  allowed  to  the  de- 
fendant to  answer  before  he  is  at  liberty  to  file  a  replication.''^ 

When  the  amendment  consists  of  immaterial  or  mere  formal 
matters  not  in  any  way  changing  the  substance  of  the  bill,  it 
would  appear  that  an  answer  would  not  be  required ;  ^  but  as  a 
ereneral  rule,  if  the  amendments  consist  of  matters  of  substance, 
the  defendant  may  either  plead,  answer  or  demur  as  though  it 
were  an  original  bill,  regardless  of  the  state  of  the  pleadings 
prior  to  the  amendments.* 

In  the  United  States  court  this  is  regulated  by  rule,*  which 
provides  that,  "in  every  case  where  an  amendment  shall  be 
made  after  answer  filed,  the  defendant  shall  put  in  a  new  or 
supplemental  answer  on  or  before  the  next  succeeding  rule-day 

1  Tedder  V.  Stiles,  16  Ga,  1;   Trust  A  pp.  389.    Where  a  bill  was  amended 

&  Fire  Ins.  Co.  v.  Jenkins,  8  Paige,  on   application  to  the  court  it  was 

589,  592.  lield  that  the  defendant  should  be 

2 Richardson     v.     Richardson,      5  compelled   to  answer  the  amended 

Paige,  5S,  59;  Davis  V.  Davis,  62  Miss.  bill.     West  v.  Hall.  3  Har.  &  J.  (Md.) 

818;  Hutchinson  v.  Reed,  1  Hofif.  Ch.  221.     And  in  Hagthrop  v.  Hooks.  1 

(N.  Y.)  316.  Gill  &  J.  (Md.)  270,  it  was  held  that 

3  Chicago,  etc.  Ry.  Co.  v.  Bank,  134  when  the  plaintiff  amends  his  bill  he 

U.  S.  276,  289;  Salisbury  v.  Miller,  14  is  entitled  to  a  new  answer  to  the 

Mich.  160.  new   matter.       But    where    one    of 

*  Am.  Bible  Soc.  v.  Hague,  10  Paige,  several  defendants  had  answered  the 

549;  Angel  v.  Railway  Co..  37  N.  J.  Eq.  original  bill  and  fully  responded  to 

93;  Trust  &  Fire  Ins.  Co.  v.  Jenkins,  all    matters     which    were     in    the 

8  Paige,  589.     And  where  a  proposed  amended  bill  by  which  his  interest 

amendment  to  the  bill  charged  fraud,  could   be  affected,  it  was  held  that 

the  original  bill  having  charged  mis-  no  answer  to  the  amended  bill  from 

take,  it   was   held   to  be  reversible  such  defendant  was  necessary.    Fitz- 

error  to  proceed  to  hearing,  the  de-  hugh  v.  McPherson,  9  Gill  &  J.  (Md) 

fendants  objecting  without  an  order  51;  Tompkins  v.  Hollister,  60  Mich, 

requiring  defendant  to  answer  the  470. 

bill     Adams  v.  Gill,  158  111.  190,  41  3  U.  S.  Eq.  Rule  46. 
N.  E.  738;  Lindsey  v.  Lindsey,  40  III 


§  256.]         A.MENDMENTS,  SUPPLEMENTAL   PLEADINGS,  ETC.  84?> 

after  that  on  which  the  amendments  or  amended  bill  is  filed, 
unless  the  time  is  enlarged  or  otherwise  ordered  by  a  judge  of 
the  court;  and  upon  his  default,  the  like  proceedings  maybe 
had  as  in  cases  of  an  omission  to  put  in  an  answer." 

Where  a  pro  confesso  order  has  been  taken  to  the  original 
bill,  the  filing  of  an  amended  or  supplemental  bill  vacates  it, 
and  the  defendant  will  be  admitted  to  answer.^  The  amend- 
ment of  the  bill  does  not  necessarily  put  two  bills  into  the 
case,  nor  is  it  a  substitute  for  or  abandonment  of  the  original 
bill  so  as  to  preclude  the  complainant  from  proving  allegations 
in  it,  but  the  two  bills  are  said  to  constitute  one  record.^  And 
so  the  statute  of  limitations  has  been  held  to  be  no  defense  to 
an  amended  bill  unless  it  might  have  been  interposed  as  to  the 
original  bill.'  And  where  an  amended  bill  is  sufficient  to 
sustain  an  injunction  which  has  been  granted  upon  the  original 
bill,  the  injunction  will  be  sustained  regardless  of  the  insuffi- 
ciency of  the  original  bill. 

In  Barber  v.  Reynolds  *  the  court  say :  "  The  original  motion 
to  dissolve  the  injunction  was  afterwards  heard  and  denied, 
and,  subsequently,  a  motion  to  vacate  the  order  granting  leave 
to  file  an  amended  complamt  without  prejudice  to  the  injunc- 
tion was  also  denied,  and  from  these  orders,  refusing  to  dis- 
solve the  injunction  and  to  vacate  said  order  granting  leave, 
the  appeal  is  taken.  If  the  amended  complaint  is  sufficient  to 
sustain  the  injunction,  the  motion  to  dissolve  was  properly  de- 
nied, unless  the  amendment  of  the  coxi^^X^^vX  propria  vlgore 
worked  a  dissolution,  or  entitled  defendants  to  a  dissolution. 
The  amended  complaint  supersedes  the  original,  but  there  is 
no  dismissal  of  the  action.  It  simply  takes  the  place  of  the 
other.  No  new  or  different  action  is  commenced,  and  no  new 
cause  of  action  is  introduced.  There  is  no  change  in  the  iden- 
tity of  the  cause  of  action.     That  is  the  same  as  before,  and 

1  Gibson  v.  Rees,  50  111.  383;  Bank  4Sandf.  (N.  Y.)573;  Furniss  v.  Brown, 
of  Utica  V.  Finch,  1  Barb.  Cli,  75.  8  How.  (N.  Y.)  59.     In  Lyster  v.  Stick- 

2  Lewis  V.  Lamphere,  79  111.  187;  ney,  12  Fed.  609,  held,  where  the 
Bradish  v.  Grant,  119  111.  606,  9  N.  R  amended  bill  upon  its  face  is  suffi- 
332,  11  N.  E.  258;  Munch  v.  Shabel,  cient  to  sustain  the  injunction  and 
37  Mich.  166.  there  is  no  showing  outside  the  bill 

s  Allen  V.  Woodson,  50  Ga.  53;  why  it  should  be  dissolved,  a  motion 
Wilhelm's  Appeal,  79  Pa.  St.  120.  to  dissolve  must  be  overruled. 


33  Cal.  497, 501 ;  Seldon  v.  Vermilya, 


344:  AMENDMENTS,  SUPPLEMENTAL    PLEADINGS,  ETC.         [§  256. 

the  commencement  of  the  action  dates  from  the  filing  of  the 
original  complaint  and  issuing  of  summons  thereon.  The 
change  consists  merely  in  more  fully  setting  forth  the  cause  of 
action  defectively  alleged  in  the  original  complaint.  It  is  the 
former  complaint  amended.  The  old  complaint,  in  the  form 
first  filed,  ceases  to  be  the  complaint  in  the  case,  or  to  perform 
any  further  function  as  a  pleading,  but  the  amended  complaint 
falls  into  its  place,  and  performs  the  same  and  not  different 
functions.  The  identity  of  the  action  is  in  no  respect  affected. 
This  was  so  held  in  the  very  case  cited  by  appellants.  The 
plaintiffs,  after  demurrer,  and  before  the  trial  of  the  issue  of 
law  thereon,  were  entitled  to  amend  as  of  course.  We  know 
of  no  good  reason  upon  principle  why  an  amendment  may  not, 
by  leave  of  the  court  or  judge,  be  made  without  prejudice  to  a 
preliminary  injunction  already  granted.  The  injunction  rests 
upon  the  same  cause  of  action  after  amendment  as  before,  and 
it  is  in  the  same  suit;  and  it  is  settled  by  the  authorities  that 
an  amendment  may  be  made  on  leave  without  prejudice  to  the 
injunction  previously  granted."  The  fiction,  however,  that  the 
amended  bill  relates  back  to  the  original  bill  and  becomes 
merged  in  it,  the  two  making  up  one  record,  cannot  be  carried 
to  an  extent  that  will  prejudice  accruing  or  intervening  rights, 
or  unsettled  vested  rights. 

In  Jones  v.  McPhillips  ^  the  court  say :  "  The  rule  that  an 
amendment  to  a  bill,  if  properly  allowed,  takes  effect  as  of  the 
filing  of  the  original  bill,  is  not  true  under  all  circumstances 
and  to  all  intents.  .  .  .  We  cannot  presume  facts  were 
averred  to  exist  at  a  time  when  they  had  no  existence  in  fact. 
But  the  presumption  is  a  mere  legal  fiction,  and  fictions  cannot 
be  so  stretched  as  to  presume  the  existence  of  the  impossible. 
They  cannot  be  indulged  to  the  prejudice  of  accruing,  inter- 
vening titles,  and  cannot  retroact  so  as  to  unsettle  vested  rights, 
innocently  acquired.  The}''  are  indulged  in  furtherance  of 
justice,  but  not  allowed  to  work  an  injustice." 

The  bill  being  amended  and  a  new  bill  filed,  no  new  process 
is  necessary  except  to  bring  in  persons  who  are  made  new  par- 
ties to  the  suit  by  the  amended  bill.     The  parties  in  the  suit 

182  Ala.  103;  Goodman  v.  Winter,  64  Ala.  410,  437;  Chapman  v.  Fields, 
70  Ala.  403. 


§  257.]         AMENDMENTS,  SUPPLEMENTAL    PLEADINGS,  ETC.  345 

commenced  by  the  original  bill  are  presumed  to  have  notice 
of  the  amended  bill  and  no  further  process  is  necessary.^ 

§  257.  Amendments  making  a  new  and  ditfereut  case  not 
allowed. —  When  the  proposed  amended  bill  would  make  a 
now  and  different  case,  it  is  held  to  be  contrary  to  the  mean- 
ing and  tenor  of  amendments,  and  would  not  be  permitted. 
And  so  where  a  bill  in  aid  of  ejectment  proceedings  was  filed, 
an  application  for  an  amendment  made  at  the  hearing  to  con- 
vert it  into  a  foreclosure  bill  by  substituting  the  ordinary 
prayer  for  foreclosure  of  the  mortgage  in  the  place  of  the 
prayer  contained  in  the  original  bill  was  not  allowed.  The 
court  said:  "The  question  of  allowing  the  bill  to  be  amended 
at  the  final  hearing  of  the  cause  on  the  pleadings  and  evidence 
is  one  subject  very  much  to  the  discretion  of  the  court;  and 
where  the  amendment  sought  would  transfer  the  cause  to  a 
different  head  of  equity,  and  the  court  refuses  permission  and 
dismisses  the  bill,  as  in  this  instance,  without  prejudice,  an  ap- 
pellate court  will  decline  to  disturb  the  result,  unless,  in  view 
of  all  the  circumstances,  the  impropriety  of  the  refusal  is  con- 
spicuous. And  in  case  the  change  so  moved  for  contemplates 
the  introduction  or  substitution  of  a  new  controversy  in  prin- 
ciple, it  is  the  general  rule  to  disallow  it.  But  short  of  this 
there  is  great  liberality,  and  in  some  very  peculiar  cases  the 
court  will  deem  it  just  and  politic  to  deviate  from  the  general 
rule,  and  will  allow  the  complainant,  on  fair  and  equitable 
terms,  to  revise  his  bill  and  give  it  a  new  bearing.  But  no 
authority  has  been  found  for  permitting  him,  at  this  stage  of 
the  case,  to  convert  a  bill  filed  and  resisted  as  one  merely 
auxiliary  to  a  case  at  law  into  a  suit  for  full  and  independent 
relief  under  another  head  of  equity."  ^ 

In  Belton  v.  Ajpperson^  the  court  say:  "The  rule  in  equity 
in  regard  to  amendments  is  that  they  may  be  made  when  the 

1  Lawrence  v.  Bolton,  3  Paige  2  Livingston  v.  Hayes,  43  Mich.  129, 
(N.  Y.),  294:  Beekman  v.  Waters,  3  135.  In  Seborn  v.  Beckwith,30W.  Va. 
John.  Ch.  (N.  Y.)  410;  Equitable,  etc.  774,  779,  it  was  held,  "a  party  under 
Soc.  V.  Laird,  24  N.  J.  Eq.  319.  In  the  privilege  of  amending  is  not  to  in- 
Fogg  V.  Merrill,  74  Me.  523,  it  was  troduce  new  matter  which  would  con- 
held  that  the  respondent,  having  had  stitute  a  new  bill."  Piercy  v.  Beck- 
due  service  of  the  original  bill,  may  ett,  15  W.  Va.  444;  Shields  v.  Barrow, 
be  fairly  held  to  have  had  construct-  17  How.  (U.  S.)  130,  144. 
ive  notice  of  all  amendments.  3  26  Grat.  (Va.)  207,  215. 


346  AMENDMENTS,  SUPPLEMENTAL    PLEADINGS,  ETC.         [§  258. 

bill  is  defective  in  its  prayer  for  relief,  or  in  the  omission  or 
mistake  of  some  circumstance  connected  with  the  substance  of 
the  case,  but  not  forming  the  substance  itself.  The  plaintiff 
will  not  be  permitted  to  abandon  the  entire  case  made  by  his 
bill,  and  make  a  new  and  different  case  by  way  of  amendment.'* 
Where  to  grant  the  amendment  asked  for  would  be  to  allow 
such  a  departure  from  the  original  bill  as  to  require  a  different 
character  of  evidence  to  support  it,  as,  for  example,  an  attempt 
to  convert  an  action  in  equity  to  subject  certain  real  estate  to  a 
lien  to  pay  a  debt  into  an  action  at  law,  it  will  not  be  granted.' 
And  when  the  proposed  amendment  is  repugnant  to,  and  a  con- 
tradiction of,  material  matters  of  fact  in  the  original  bill,  as 
when  the  original  bill  alleges  a  certain  mortgage  to  be  valid  and 
the  amendment  alleged  it  to  be  void,  such  an  amendment  was  re- 
fused, the  court  saying:  "While  amendments  to  a  bill  in  chan- 
cery are  liberally  allowed,  as  to  parties,  prayer  for  relief  and  as  to 
substance,  germane  to  and  in  enlargement  or  explanatory  of  the 
substantial  parts  of  the  bill  on  which  the  relief  prayed  for  is  predi- 
cated, the  orator  is  never  allowed  by  amendment  to  bring  upon 
the  record  new  matter  repugnant  to,  or  inconsistent  with,  that 
set  forth  in  the  bill,  nor  substantially  to  make  a  new  bill.  P]s- 
pecially  is  this  true  of  injunction  bills,  where  much  greater 
strictness  prevails  in  regard  to  amendments,  and  where  the 
amendments  must  be  sworn  to,  if  they  would  furnish  any  aid 
in  upholding  the  injunction."'^ 

§  258.  Same  subject  — Limitations  to  amending  the  an- 
swer.—  There  are  no  doubt  greater  limitations  upon  granting 
amendments  to  the  answer  than  in  allowing  amendments  to  the 
bill  of  complaint.  The  reason  for  this  has  been  suggested.*  But 
when  the  ends  of  justice  demand  it,  the  courts  go  a  great  way 
in  granting  applications  which  the  general  rules  and  practice 
would  seem  to  forbid.  The  same  reasons  for  denying  amond- 
ments  to  the  bill  of  complaint  mentioned  in  the  last  section, 

1  Burnham  v.  Tillery,  85  Mo.  App.  20  R.  L  256;  Savage  v.  Worsliam,  10-1 

453.     In  Gardner  v.  Knight.  134  Ala,  Fed.  18;  Brainard   v.  Buck,  16  Appt 

273,  27  Sa  298,  it  was  held  that  a  bill  D.  C.  595;  State  v.  Mitchell,  104  Tenn. 

to  cancel  a  deed  could  not  be  con-  336,  58  S.  W.  365. 

verted  by  amendment  into  a  bill  for  2  Hill  v.  Hill,  53  Vt.  578,  582;  Barnes 

specific  performance.    Ferris  v.  Hoag  v.    Greenzebach,    1   Edw.    Ch.    41;  1 

land,  121  Ala.  240:  Tennant  v.  Dun-  Danl.  Ch.  PI.  &  Pr.  469  and  notes. 

lop,  97  Va.  234;  O'Connor  v.  O'Connor,  3  Ante,  §  251. 


§  258.]         AMENDMENTS,  SUPPLEMENTAL    PLEADINGS,  ETC.  347 

SO  far  as  applicable,  obtain  in  applications  to  amend  the  answer. 
The  defendant  having  answered  the  bill  and  fully  noticed  his 
line  of  defense  and  the  facts  he  relies  upon,  and  having  sworn 
to  them  and  served  the  complainant  with  the  answer,  who  in 
preparing  for  the  hearing  has  relied  upon  the  attitude  of  the 
defendant  set  forth  in  his  answer,  courts  are  very  loath  to  per- 
mit a  change  of  attitude  by  allowing  the  defendant  to  amend, 
especially  at  the  hearing,  and  generally  will  not,  unless  good 
excuse  for  asking  to  so  amend  is  made  in  the  application  and 
supported  by  affidavits;  as,  for  example,   that  the  facts  were 
not  known  to  the  defendant  until  the  time  of  making  the  ap- 
plication, and,  if  antagonistic  to  the  original  answer,  that  the 
original  answer  was  the  result  of  ignorance  and  mistake.    And 
where  the  proposed  amended  answer  was  practically  a  contra- 
diction of  the  original  answer,  and  it  appeared   that  a  long 
time  had  elapsed  since  the  amendment  could  have  been  applied 
for,  that  the  defendant  had  full  knowledge  of  the  facts  alleged 
in  the  proposed  amended  answer  at  the  time  he  filed  his  orig- 
inal answer,  and  the  amendments  introduced  new  issues  con- 
cerning which  the  defendant,  and  one  who  had   recently  be- 
come insane,  were  the  only  witnesses,  the  court  held  that  the 
application  to  amend  such  an  amended  answer  should  be  denied.^ 
Where  a  defendant  had  filed  a  sworn  answer  in  the  case,  and, 
after  all  the  evidence  was  in  and  the  case  argued  and  submit- 
ted, asked  to  amend  his  answer  so  as  to  change  his  attitude 
from  that  of  acquiescence  in  the  claim  of  the  plaintiff  to  that 
of  claiming  ownership  of  the  property  himself,  and  seeking 
substantive  relief  against  a  co-defendant,  thus  assuming  an  en- 
tirely different  and  antagonistic  position  to  that  assumed  in 
his  original  answer,  the  court  held  that  it  should  not  be  allowed, 
remarking,  in  the  course  of  the  opinion,  •'  that  two  conditions 
are  ever  essential  to  enlist  the  powers  of  a  court  of  equity, 
namely,  a  case  commended  in  the  forum  of  good  conscience, 
and  reasonable  diligence  in  prosecuting  it."^     But  no  definite 
fixed  rule  can  be  laid  down;  all  rests  in  the  sound  discretion 
of  the  court.    If  the  application  is  made  late  in  the  disposition 
of  the  case,  after  the  pleadings  are  filed  and  the  cause  is  at 

1  Chattanooga,  etc.  Co.  v.  Livingston  (Tenn.  Ch.,  1900),  59  S.  W.  470. 

2  Joyce  V.  Growney,  154  Mo.  253,  263. 


348      AMENDMENTS,  SUPPLEMENTAL  PLEADINGS,  ETC.       [§§  259,  260. 

hearing,  or  even  after  the  hearing,  the  court  will  examine  the 
application  together  with  the  evidence  that  has  been  put 
in,  and  determine  the  matter  in  the  exercise  of  a  sound  dis- 
cretion and  in  the  interest  of  all  the  parties  to  the  controversy.^ 
§  259,  Ameudnieut  of  the  answer  at  the  hearing. —  Quite 
the  same  general  practice  obtains  as  to  applications  for  amend- 
ment of  the  answer  at  the  hearing  as  prior  to  that  time;  but 
perhaps  there  is  more  leniency  extended  by  the  court,  for  at 
this  time  the  court  can  better  understand  the  equities  of  the 
application;  and  where  it  is  necessary  to  a  just  determination 
of  the  controversy  to  amend  the  answer  the  court  will  do  so, 
carefully  protecting  the  rights  of  all  the  parties.^  Where  at 
the  trial  no  objection  is  made  to  the  admission  of  proof  which 
is  not  admissible  under  the  answer,  "  and  no  surprise  alleged, 
and  it  appears  that  justice  will  be  done  by  establishing  the 
title  proved  at  the  trial,  it  would  be  competent  for  the  court 
to  direct  an  amendment  of  the  answer  if  necessary.  .  .  . 
Such  amendment  could,  under  such  circumstances,  only  be 
necessary  for  the  sake  of  conformity.""  In  Walden  v.  Bodley* 
it  was  held  by  the  court  that  "  there  are  cases  where  amend- 
ments are  permitted  at  any  stage  of  the  progress  of  the  case,  as 
where  an  essential  party  has  been  omitted;  but  amendments 
which  change  the  character  of  the  bill  or  answer,  so  as  to  make 
substantially  a  new  case,  should  rarely,  if  ever,  be  admitted 
after  the  cause  has  been  set  for  hearing,  much  less  after  it  has 
been  heard." 

II.  Supplemental  Pleadings. 

§  260.  The  office  and  nature  of. —  The  office  of  supplemental 
pleadings  is  indicated  by- their  name.  They  are  employed  to 
supplement  the  original  pleading  with  facts  which  have  oc- 
curred since  it  was  filed  in  the  cause;  not  to  supply  defects  or 
correct  mistakes  based  upon  facts  existing  at  the  time  of  the 
filing  of  the  original  pleading,  for  that  can  only  be  done  by 
amendment,  and  will  not  be  allowed  by  supplemental  plead- 
ings, except  so  far,  perhaps,  as  the  defect  relates  to  the  form 
of  the  bill  or  the  parties  thereto.     Supplemental  pleading  may 

1  Ritchie  v.  McMullen,  25  C.  C.  A-  3  Powell  v.  Mayo,  26  N.  J.  Eq.  120, 
50,  79  Fed.  532.  125. 

2  Balen  v.  Mercier,  75  Mich.  42.  <  14  Pet.  (U.  S.)  156,  160. 


P  200.]         AMENDMENTS,  SUPPLEMENTAF-    PLEADINGS,  ETC.  319 

be  said  to  be  permitted  in  connection  with  every  pleading-  in 
the  equity  cause  by  which  the  facts  in  the  case  are  presented 
for  the  determination  of  the  court. 

In  Beach  v.  Reynolds  ^  the  court  defines  a  supplemental  bill 
as  it  is  known  to  the  chancery  practice  to  be  "a  bill  designed 
to  bring  before  the  court  facts  which  had  occurred,  or  at  least 
been  discovered,  since  the  filing  of  the  original  bill,  and  affect- 
ing the  rights  of  the  parties,  or  the  subject  of  the  controversy, 
or  to  add  parties,  or  to  remedy  a  defect  in  the  prayer  of  the 
original  bill."^  But  where  it  was  necessary,  to  the  proper 
elucidation  of  that  which  occurred  subsequent  to  the  filing  of 
the  bill,  to  state  not  only  the  material  facts  which  occurred 
subsequent  to  the  commencement  of  the  suit,  but  other  matters 
which  might  have  been  incorporated  into  the  original  bill  by 
way  of  amendment,  the  court  allowed  such  facts  to  be  intro- 
duced by  way  of  supplemental  bill.'  And  where  the  complain- 
ant had  no  knowledge  of  the  entry  of  a  certain  judgment  ma- 
terial to  his  case  until  after  the  filing  of  an  amended  bill,  a 
supplemental  bill  was  permitted  to  be  filed.*  And  where  stock- 
holders were  attempting,  by  proceeding  in  a  state  court,  to 

1 64  Barb.  (N.  Y.)  506,  511.   In  Com-  the  original  bill.  Hammond  v.  Place 

mercial  Assur.    Co.    v.    New   Jersey  Harr.  Ch.  (Mich.)  438. 

Rubber  Co.,  61  N.  J.  Eq.  446,  49  AtL  3  in    Graves    v.   Niles,    Harr.    Cb. 

155,  it  was  held  that  if  facts  are  in-  (Mich.)  333.  334,  the  court  say:  "If 

troduced  in  the  supplemental   bill  material  facts  have  occurred  subse- 

which  might  have  been  introduced  quent  to  the  commencement  of  the 

by  amendment,  the  bill  would  be  de-  suit,  the  court  will  give  the  com- 

murrable.     Kelly  v.  Galbraith.  87  III  plainants    leave    to    file    a  supple- 

App.  63,  58  N.  E.  431.     In  Shellabar-  mental  bill;  and  where  such  leave  is 

ger,  etc.  Ca  v.  Willing,  81  111.  App.  given   the   court  will   permit  other 

30,  it  was  said  that  a  supplemental  matters  to  be   introduced  into  the 

bill  filed  previous  to  process  will  be  supplemental  bill,  which  might  have 

considered  as   part  of  the  original  been   incorporated  in   the  original, 

bill,   and  they  taken   together   will  by  way  of  amendment.     This  is  cer 

constitute  one  amended   bill.     Hall  tamly    proper    where    the    matter 

V.  Building  Co.,  56  N.  J.  Eq.  304.  which  occurred  prior  is  necessary  to 

2Varick  v.  Edwards.  1  Hoff.  Ch.  tlie  proper  elucidation  of  that  which 
Pr.  (N.  Y.)  393;  Walker  v.  Hallett,  1  occurred  subsequent  to  the  original 
Ala.  379.  And  in  Ramey  v.  Green,  bill."  Stafford  et  al.  v.  Howlett  & 
18  Ala.  771,  it  was  held  that  a  supple-  West,  1  Paige  (N.  Y).  200. 
mental  bill  which  varies  the  relief  *  Nevada  Nickel  Syndicate  v.  Na- 
to  which  the  complainant  was  en-  tional,  etc.  Co.,  86  Fed.  486;  Chap- 
titled  when  the  original  bill  was  pell  Chemical  Co.  v.  Mines  Co.,  85 
filed  may  be  allowed  if  the  subject-  Md.  681;  Caldwell  v.  First  Nat- 
matter  and  title  are  stili  the  same  as  Bank,  89  111.  App.  448. 


350  AMENDMENTS,  SUPPLEMENTAL    PLEADINGS,  ETC.         [§  261. 

nullify  a  decree  of  the  court  foreclosing  a  mortgage  on  the  cor- 
porate property,  it  was  held  that  a  supplemental  bill  by  a  pur- 
chaser was  a  proper  proceeding  to  obtain  a  restraining  order.^ 
§261.  Must  obtain  leave  of  court  to  file.— The  cause  is 
pending  and  under  the  control  of  the  court  at  the  time  it  is 
desired  to  supplement  the  pleading,  and  it  would  seem  neces- 
sary to  obtain  leave  of  the  court  to  file  such  a  pleading.'-  To 
that  end  application  should  be  made  to  the  court  and  served 
upon  the  opposite  party,  giving  notice  of  the  time  for  hearing. 
In  this  application,  or  petition,  as  it  is  more  properly  called, 
the  party  desiring  leave  to  file  a  supplemental  pleading  must 
set  forth  all  the  facts  which  entitle  him  to  an  wder  of  the 
court  granting  his  application.  But  it  has  been  held  that  it 
is  not  necessary  that  the  petition  should  contain  all  the  aver- 
ments intended  to  be  set  forth  in  the  supplemental  bill,  but 
merely  sufiicient  of  the  matter  depended  upon  to  advise  the 
opposite  party  and  the  court  of  the  grounds  upon  which  the 
application  is  made;  and  consent  obtained  ex  parte,  has  been 
sufficient  in  ordinary  cases,  but  not  in  cases  where  a  prelim- 
inary injunction,  a  receiver  or  some  special  relief  is  asked  for, 
DY  relief  that  would  materially  change  or  modify  the  character 

1  Central  Trust  Ca  v.  West  M.  C.  Parkhurst   v.   Kinsman,  2   Blatchf. 

R  Co.,  89  Fed.  24;  Prouty  V.  Railway  (U.    S.)   72.      United   States   Equity 

r      85  N  Y  272  Rule   57   prescribes   the   practice  in 

*2"Bowie  v.Minter,  2  Ala.  406;  Winn  the  United  States  court  as  follows: 

V  Albert,  2  Md.  Ch.  42;  Pedrick  v.  "Whenever  any  suit  in  equity  shall 
White.  42  Mass.  (1  Mete.)  76;  Tappan  become    defective   from   any   event 

V  Evans,  12  N.  H.  330.  But  it  has  happening  after  the  filing  of  the  bill 
been  held  that  a  subsequent  refusal  (as,  for  example,  by  change  of  inter- 
of  the  court  to  strike  out  a  supple-  est  in  the  parties),  or  for  any  other 
mental  bill  filed  without  leave  is  reason  a  supplemental  bill,  or  a  bill 
tantamount  to  leave  to  file  it.  Ward  in  the  nature  of  a  supplemental  bill, 
v.  Whitfield,  64  Miss.  754.  2  So.  493.  may  be  necessary  to  be  filed  in  the 
And  if  no  objection  is  taken  to  the  cause,  leave  to  file  the  same  may  be 
supplemental  bill  on  the  ground  that  granted  by  any  judge  of  the  court 
it  was  filed  without  leave,  the  ob-  on  any  rule-day,  upon  proper  cause 
jection  will  be  considered  as  waived  shown,  and  due  notice  to  the  other 
by  a  voluntary  appearance  and  de-  party.  And  if  leave  is  granted  to 
murrer.  Allan  v.  Taylor,  3  N.  J.  Eq.  Ale  such  supplemental  bill,  the  de- 
(2  H.  W.  Green),  435.  29  Am.  Dec.  fendant  shall  demur,  plead,  or  an- 
721-  Fisher  v.  Holden,  84  Mich.  494;  ewer  thereto,  on  the  next  succeeding 
Hammond  v.  Place,  Harr.  Ch.  (Mich.)  rule-day  after  the  supplemental  bill 
438:  Wood  v.  Truax,  39  Mich,  62a  is  filed  in  the  clerk's  oflace,  unless 

s  Eagar  v.  I»rice,  2  Paige.  Ch.  .333;     some  other  time  shall  be  assigned  by 
Lawrence  v.  Bolton,  3  Paige,  Ch.  294;    a  judge  of  the  court." 


§  2;j2  AMENDMENTS,  SUPPLEMENTAL    PLEADINGS,  ETC.  351 

of  the  proceeding.*  And  so  it  has  been  held  that  a  supple- 
mental bill  which  has  no  connection  with  the  orip;inal  bill 
would  not  be  allowed,  and  therefore  the  application  for  per- 
mission to  file  a  supplemental  bill  must  set  forth  sufficient 
facts  that  the  court  may  determine  that  the  bill  sought  to  be 
filed  relates  to  the  matters  of  fact  alleged  in  the  original  bill, 
■ind  is  for  the  same  object  and  for  obtaining  the  same  relief.^ 
g  2^2.  Granting  leave  to  file  supplemental  pleadings. — 
Generally  it  seems  to  be  accepted  that  the  granting  or  refus- 
ing to  grant  the  application  for  leave  to  file  a  supplemental 
pleading  is  in  the  discretion  of  the  court.  This  may  be  gen- 
erally true,  but  that  discretion  must  be  equitably  and  soundly 
exercised;  and  while,  perhaps,  it  can  hardly  be  said  that  there 
are  facts  and  circumstances  that  will  warrant  a  party  in  de- 
manding the  privilege  as  a  right,  still  the  practice  and  rules 
of  court  are  so  well  established  that  it  would  seem  that  cases 
might  rest  upon  such  strong  facts  that  they  would  be  beyond 
even  the  control  of  discretion  and  rest  rather  in  the  rie-ht  of 
the  parties  to  an  order  permitting  the  filing  of  such  a  plead- 
ing. But  that  rule  of  law  which  assumes  that  the  equit}'- 
court  will  never  abuse  its  discretion  in  such  cases  and  will 
anxiously  guard  the  equities  of  the  parties  will  perhaps  avail 
in  all  cases,  for,  if  there  is  an  abuse  of  discretion  in  refusing  or 

»  Minn.  Co.  v.  St.  Paul,  etc.  Co.,  73  U.  S.  (6  Wall.)  743,  18  L.  Ed.  865. 
The  following  form  of  petition  for  leave  to  file  a  supplemental  bill  has 
been  approved: 

{Title  of  court  and  cause.) 
The  petition  of  A.  B.,  the  above  named  complainant,  respectfully  shows: 

1.  That  on  or  about  the day  of ,  your  petitioner  filed  his  bill  of 

complamt  in  this  court  against  C.  D.  for  the  purpose  of  [state  here  the  gen- 
eral object  of  the  original  bill},  and  praying  [state  the  prayer  of  the  oriqi- 
nal  bill]. 

2.  Your  petitioner  further  shows  that  the  said  C.  D.,  bein^  served  with 
process  of  subpoena,  appeared  to  the  said  bill,  but  has  not  yet  put  in  his  an- 
swer thereto  [or,  has  answered,  as  the  case  may  be];  that  after  the  appear 

ance  of  the  said  defendant  was  entered,  and,  to  wit,  on  or  about  the 

day  of  ,  and  before  any  further  proceedings  were  had  in  said  cause 

[state  here  the  supplemental  matter].  Wherefore  your  petitioner  is  advised 
that  it  is  necessary  to  file  a  supplemental  bill  all'eging  the  facts  hereinbe- 
fore stated.  [Or,  if  a  new  party  is  involved,  the  petition  should  state: 
Wherefore  your  petitioner  is  advised  that  it  is  necessary  to  bring  the  said 
R  F.  before  this  court  as  a  party  defendant  to  this  suit]. 

3.  Your  petitioner  therefore  prays  that  leave  may  be  granted  to  him  to 
file  a  supplemental  bill  [if  a  new  party  is  brought  in:  against  the  said  E.  F. 
for  the  purpose  of  making  him  a  party  defendant  to  this  suit,  with  proper 
and  apt  words  to  charge  him  as  such,  with  such  prayer  for  relief  as  may 
be  proper,  etc.] 


352 


AMENDMENTS,  SUPPLEMENTAL   PLEADINGS,  ETC.         [§  263. 


granting  the  order,  the  party  has  his  remedy  in  the  appellate 
court.^ 

In  Yoah  v.  National  Investment  Co}  the  supreme  court  of 
Minnesota  took  occasion  to  say:  "  We  do  not  wish  to  be  under- 
stood as  intimating  that  in  a  proper  case  the  filing  of  a  sup- 
plemental pleading,  if  done  in  season,  is  not  a  matter  of  right, 
if  that  right  has  not  been  by  any  means  forfeited." 

§263.  Some  limitations.— There  are  certain  limitations 
upon  the  use  of  the  supplemental  bill,  and  these  limitations 
apply  generally  to  all  supplemental  pleadings.  As  we  have 
seen  in  the  preceding  section,  if  the  matter  existed  at  the  time 
of  filing  the  original  bill,  it  must  be  introduced  by  amendment, 
and  will  not  be  permitted  by  way  of  supplemental  bill.  And 
so  if  the  deficiency,  or  matter  sought  to  be  added,  be  incon- 
sistent and  foreign  to  the  original  bill  and  its  object,  it  will 
not  be  allowed.*   And  where  the  facts  alleged  show  a  new  and 


1  In  Stith  V.  FuUinwider,  40  Kan. 
73,  it  was  held  that,  unless  the  order 
is  shown  to  be  a  flagrant  violation 
of  discretion,  the  granting  of  it  is 
not  ground  for  error.  In  Louisville, 
etc.  R.  Co.  V.  Hubbard,  116  Ind.  193, 
held  that  there  must  be  an  abuse  of 
discretion,  and  proof  of  it  devolves 
upon  the  party  assailing  the  order. 
And  where  it  appeared  that  the 
facts  proposed  to  be  set  up  might 
have  been  discovered  by  use  of  or- 
dinary diligence,  and  it  did  not  ap- 
pear that  the  refusal  to  grant  the 
order  would  work  a  prejudice  to  the 
appellant,  the  court  held  that  the 
matter  rested  in  the  discretion  of 
the  court,  and  that  the  court  acted 
properly  in  refusing  permission  to 
file  further  pleadings.  Henderson  v. 
Henderson,  55  Mo.  534. 

2  51  Minn.  450,  455. 

3  Leonard,  etc.  v.  Cook  (N.  J.  Eq., 
1890),  21  Atl.  47.  In  Stafford  v.  Hew- 
lett, 1  Paige  Ch.  (N.  Y.)  200,  the  chan- 
cellor said:  "It  is  a  well-settled  rule 
that  nothing  can  be  inserted  in  an 
original  bill  by  way  of  amendment 
which  has  arisen  subsequent  to  the 


commencement  of  the  suit,  but  the 
same  must  be  stated  in  a  supple- 
mental bill.  On  the  other  hand, 
matters  which  arose  previous  to  the 
filing  of  the  original  bill,  although 
discovered  by  the  complainant  after- 
wards, should  be  introduced  into  the 
same  by  way  of  amendment,  pro- 
vided the  cause  is  in  that  stage  in 
which  an  amendment  is  allowable. 
If  the  cause  has  progressed  so  far 
that  an  amendment  cannot  be  made, 
or  if  material  facts  have  occurred 
after  the  commencement  of  the  suit, 
the  court,  on  a  proper  application, 
will  give  the  complainant  leave  to 
file  a  supplemental  bill.  And  wher- 
ever the  party  is  permitted  to  file 
such  bill  for  the  purpose  of  intro- 
ducing matters  which  have  arisen 
subsequent  to  the  filing  of  the  orig- 
inal bill,  the  court  will  also  give  to 
the  complainant  permission  to  intro- 
duce other  matters  into  the  supple- 
mental bill  which  might  have  been 
introduced  by  way  of  amendment  to 
the  first  bill.  If  it  appears  upon  the 
face  of  the  supplemental  bill  that 
the  whole  of  the  matters  charged 


§  263.]         AMENDMENTS,  SUPPLEMENTAL    PLEADINGS,  ETC.  353 

substantive  cause  of  act'on  upon  which  a  decree  could  be  had 
without  reference  to  the  original  bill,  it  has  been  held  that  it 
could  not  be  set  up  by  way  of  supplemental  bill  because  the 
facts  are  entirely  distinct  from  the  original  cause  of  action, 
and  although  they  occurred  subsequent  thereto  they  consti- 
tute another  and  a  new  cause  of  action.  And  so  if  the  relief 
sought  depends  upon  such  facts,  it  would  be  necessary  to  dis- 
miss the  original  bill  and  file  a  new  one.^ 

In  Buchanan  v.  Comntock  ^  the  action  was  brought  to  settle 
and  determine  the  partnership  rights  of  the  plaintiff  and  one 
of  the  defendants,  and  not  to  determine  anything  between  such 
defendant  and  a  co-defendant  under  an  agreement  between 
them.  And  it  was  held  that  the  plaintiff  could  not  by  a  sup- 
plemental complaint  change  the  action  in  its  entire  scope  and 
purpose  by  bringing  in  and  substituting  a  new  controversy  and 
a  new  and  independent  cause  of  action  springing  out  of  the 
transaction  occurring  since  the  commencement  of  the  action 
between  the  defendants,  with  which  the  plaintiff  had  no  con- 
nection.^ The  general  rule,  no  doubt,  is  that  a  new  substan- 
tive cause  of  action  cannot  be  set  up  by  way  of  supplemental 
complaint,  but  such  complaint  must  be  consistent  with  and  in 
aid  of  the  case  made  by  the  original  complaint.  But  where 
the  supplemental  bill  does  not  seek  to  introduce  a  new  cause 
of  action  or  any  new  matter  antagonistic  or  inconsistent  with 
the  original  bill,  and  only  desires  and  asks  to  continue  the  suit 
against  a  new  party  who  had  no  existence  in  this  connection 
when  the  action  was  first  commenced,  but  has  since  acquired 
an  interest,  a  supplemental  bill  will  be  allowed.  And  where 
the  supplemental  complaint  set  forth  that  while  the  action 
was  in  progress  the  defendant,  the  old  corporation,  had  ceased 
to  exist,  and  by  arrangement  had  become  merged  in  a  new 

therein  arose  previous  to  the  com-  take  advantage  of  the  irregularity 

menceraent  of  the  suit,  and  that  the  by  a  plea  alleging  the  fact." 

situation  of  the  cause  is  such  that  ^  Milner  v.  Milner,  2  Edw.  Ch.  (N. 

they  may  be  inserted  in  the  original  Y.)  114. 

bill  by  amendment,  the   defendant  257  Barb.  Ch.  (N.  Y.)  .^83. 

may  demur.     But  if  it  does  not  dis-  'A  judgment  of  the  case  by  Mil- 

tinctly  appear  by  the  supplemental  ler,  J.,  in  Prouty  v.  Railway  Co.,  85 

bill  that  the  new  matters   charged  N.  Y.  275;  Tiffany    v.    Bowerman,  2 

therein  arose  before  the  filing  of  the  Hun  (N.  Y.),  643;  Pinch  v.  Antliony, 

original  bill,  the  defendant  can  only  10  Allen  (Mass.),  470. 
28 


35 i  AMENDMENTS,  SUPPLEMENTAL    PLEADINGS,  ETC.         [§  204. 

one,  its  successor  in  interest,  which  was  liable  for  the  claim 
that  the  plaintiff  sought  to  enforce,  it  was  held  that  this  would 
entitle  the  plaintiff  to  the  same  judgment  and  relief  originally 
demanded  against  the  defendant  in  the  origmal  bill,  and  clearly 
come  within  the  province  of  a  supplemental  complaint;  that 
the  right  to  bring  in  new  parties  by  a  supplemental  bill  is  ex- 
pressly recognized  by  the  authorities.^  But  where  complain- 
ant had  no  cause  of  action  at  the  time  of  filing  his  original 
bill,  a  supplemental  bill  will  not  be  authorized  which  rests 
upon  a  cause  of  acLion  that  accrued  after  the  suit  was  com- 
menced." And  so  it  has  been  held  that  the  plaintiff  cannot 
support  a  bad  title  by  acquiring  another  after  the  filing  of  the 
original  bill  and  setting  it  up  by  way  of  supplemental  bill  to 
an  original  bill  resting  upon  the  defective  title.' 

§  264.  Parties  to  supplemental  bill.— As  a  general  rule, 
ail  parties  to  the  original  bill  should  be  made  parties  to  the 
supplemental  bill,  but  this  is  not  an  invariable  rule,  for  it  may 
be  necessary  to  bring  in  new  parties  defendant.  And  where 
the  decree  that  is  asked  for  only  affects  a  part  of  the  defend- 
ants to  the  original  bill,  it  has  been  held  not  to  be  necessary 
to  make  persons  whose  interests  are  thus  unaffected,  parties  to 
the  supplemental  bill.  And  so,  "  where  a  supplemental  bill  is 
merely  for  the  purpose  of  bringing  formal  parties  before  the 
court  as  defendants,  the  party  defendants  to  the  original  bill 
need  not  in  general  be  made  parties  to  the  supplemental  bill."* 

1  Prouty  V.  Railway  Co.,  85  N.  Y.  strictly  supplemental  bill  is  always 
272,  276;  Varick  v.  Edwards,  1  Hoff.  founded  on  facts  that  have  occurred 
Gh.  (N.  Y.)  894,  404;  Enswoith  v.  since  the  filing  of  the  bill.  These 
Lambert,  4  Johns.  Ch.  (N.  Y.)  605;  may  be  necessary  to  aid  the  com- 
.Milner  V.  Milner,  2  Edw.  Ch.  (N.  Y.)  plainant  in  obtaining  the  relief 
114  sought,  or  in  obtaining  new  or  addi- 

2  Chandler  v.  Pettit,  1  Paige  Ch.  tional  relief.  Here  the  party  seeks  ad- 
(N.  Y.)  168.  ditional  relief,  and  if  all  the  parties 

3  Putney  v.  Whitmire,  66  Fed.  385;  are  already  in  court,  upon  the  same 
Heffron  v.  Knickerbocker,  57  111.  subject-matter,  I  see  no  propriety  in 
App.  339;  Neubert  v.  Massman,  37  turning  them  round  for  the  purpose 
Fla.  91,  19  So.  625;  Woodruff's  Ex'rs  of  bringing  a  second  suit.  It  is  laid 
v.  Brugh,  6  N.  J.  Eq.,  465.  down  as  a  rule  in  Candler  v.  Pettit 

4  Story,  Eq.  PL,  sec.  343;  Ensworth  et  al.,  1  Paige,  169,  that  if  the  com- 
V.  Lambert,  4  Johns.  Ch.  605;  Cal-  plainanfs  original  bill  is  sufficient  to 
well  V.  Boyer,  8  Gill  &  J.  (Md.)  136.  entitle  him  to  one  kind  of  relief, 
In  Allen  v.  Taylor,  3  N.  J.  Eq.  435,  29  and  facts  subsequently  occur  which 
Am.  Dec.  721,  it  was  held  that  "a  entitle  him  to  other  or  more  exten- 


§  265.]         AMENDMENTS,  SUPPLEMENTAL    PLEADINGS,  ETC.  355 

If  the  new  and  supplemental  matter  involves  the  interests 
of  persons  not  parties  to  the  original  bill,  such  persons  must  be 
made  parties  to  the  supplemental  bill,  and  the  case  fully  set 
forth  by  proper  allegations,  and  process  issued  to  bring  them 
into  court  to  answer  the  bill.  And  where  the  new  parties 
whose  interests  are  involved  by  the  supplemental  matter  are 
citizens  of  the  same  state  as  the  plaintiff,  and  the  jurisdiction 
of  the  original  case  depends  upon  the  question  of  citizenship 
of  parties,  it  has  been  held  that  the  court  will  take  jurisdic- 
tion of  the  party  and  the  cause  if  it  has  jurisdiction  of  the 
original  suit.^  And  it  is  said  that  where  parties  defendant  were 
not  made  parties  to  the  supplemental  bill,  they  must,  if  they 
desire  to  do  so,  raise  the  question  as  to  proper  parties  to  such 
supplemental  bill  in  the  usual  way,  and  at  the  hearing  of  the 
petition  for  leave  to  file  the  bill,  and  if  they  fail  to  do  so  they 
will  not  be  heard  to  object  at  the  final  hearing  of  the  cause.^ 

§  265.  Substance  and  frame  of  the  supplemental  bill. — 
The  frame  of  the  supplemental  bill  has  been  very  much  simpli- 
fied by  the  rules  and  practice  adopted  in  the  modern  equity 
courts.  Formerly  it  was  required  that  the  supplemental  bill 
should  fully  recite  the  original  bill  and  the  proceedings  had 
thereon,  but  by  rule  in  the  United  States  court  it  is  now  pro- 
vided that  "it  shall  not  be  necessary  in  any  bill  of  revivor  or 

give  relief,  he  may  have  such  relief  gor  and   mortgagee.      They    might 

by  setting  out  the  new  matter  in  the  have  been  asked  for  in  one  bill,  if 

form  of  a  supplemental  bill.    It  may  sufficient   facts  had  existed   at  the 

be  that  this  principle  is  stated  too  filing  of  the  original  bill  to  warrant 

broadly,  but  I  think  it  may  properly  it;  but  that  not  being  the  case,  it 

be  applied  to  this  case.     It  is  said  in  was  necessary  for  the  complainant 

Eager  v.  Price  et  al,  2  Paige,  333,  that  to  ask  such  relief  as  his  case  would 

the  court  will  not  permit  a  party  to  warrant.      Subsequent  events  have 

file  two  original  bills,  and  carry  on  entitled  him  to  more  extensive  and 

two  suits  at  the  same  time  against  effectual   aid,  and  I  see  nothing  to 

the   defendant  to  satisfy  the  same  prevent    his    obtaining    it    in    the 

debt.     The   expense   of  an   original  usual   way  by  bill  of  supplement."' 

bill  is  much  greater  than  of  a  sui>  M'Gown  v.  Yerks,  6  Johns.  Ch.  (N.  Y.) 

plemental  bill,  and  the  latter  should  450. 

be  used  whenever  it  can  equally  sub-  '  Minnesota  Co.  v.  St  Paul  Co.,  2 

serve  the   purposes  of  justice.      In  Wall.  (U.  S.)  609. 

this  case  the  party  seeks  two  kinds  2Lord  Hardwickein  Jonesv.  Jones, 

of  relief.    They  are  different  in  char-  3  Atk.  (Eng.)  217;  Thorn  v.  Germand, 

acter,   but    both   grow    out    of   the  4  Johns.  Ch.  (N.  Y.)  362;  2  Danl.  Ch. 

same  instrument,  the  mortgage,  and  PI.  &  Pr.  (4th  ed.)  1533,  and  noteSi 
spring  from  the  relation  of  mortga- 


356 


AMENDMENTS,  SUPPLEMENTAL    PLEADINGS,  ETC.         [§  265. 


supplemental  bill  to  set  forth  any  of  the  statements  in  the 
original  suit,  unless  the  special  circumstances  of  the  case  may 
require  it,"^  and  the  same  practice  obtains  in  other  courts.  An 
apparent  exception,  however,  exists  where  new  parties  are 
brought  in  by  a  supplemental  bill,  for  then  as  to  such  new 
parties  the  bill  would  be  original,  and  it  must  fully  set  out  by 
proper  allegations  and  by  statements  enough  of  the  former 
proceedings  to  show  the  equities  that  exist  as  against  the  new 
parties;  it  may  not  be  necessary  to  fully  restate  all  of  the 
former  proceedings,  but  sufficient  of  the  original  proceedings 
must  be  averred  as  will  be  sufficient  to  show  the  equities  claimed 
against  the  new  parties.^ 

A  supplemental  pleading  must,  of  course,  follow  the  ordir 
granting  leave  to  file  it;  that  is  to  say,  it  must  be  such  a  bill 
as  was  contemplated  by  the  order,  and  the  pleader  will  not  be 
permitted  to  file  a  different  bill  or  make  a  different  case  than 
that  contemplated  by  the  order  granting  the  privilege  to  file 
the  supplemental  pleading.' 


1 U.  S.  Eq.  Rule  58;  Danl.  Ch.  PI.  & 
Pr.  1675,  1678. 

2  Vigers  v.  Lord  Audley,  9  Sim.  72; 
DanL  Ch.  PI.  &  Pr.  1676,  1677. 

3  Graves  v.  Niles,  Harr.  Ch.  (Mich.) 
332.  In  Stockton  v.  American  To- 
bacco Co.,  53  N.  J.  Eq.  400,  405,  the 
court  say:  "There  was  no  sugges- 
tion that  the  scope  of  the  bill  and 
information  was  to  be  enlarged  to 
the  extent  of  the  instrument  now 
objected  to.  The  order  which  gave 
authority  to  file  the  supplemental 
complaint  recited  its  inducement  to 
be  to  allow  the  introduction,  by  way 
of  amendment,  of  allegations  re- 
lating to  matter  indicated  by  pro- 
posed amendments  set  forth  in  the 
petition  upon  which  the  order  was 
based.  The  change  in  the  scope  of 
the  suit  was  a  substantive  matter 
and  not  a  mere  incident  to  the  pro- 
posed amendments,  authority  for 
which  might  be  implied  from  their 
allowance.  An  allegation  incidental 
to  the  amendment  would  rather 
have  shown  the  applicability  of  the 


matter  introduced  to  the  existing 
scope  of  the  suit.  If  the  design  was 
to  reconstruct  the  suit  by  the  intro- 
duction of  an  additional  case,  that 
design  should  have  been  clearly  dis- 
closed so  as  not  only  to  afford  the  de- 
fendants an  opportunity  to  be  heard 
as  to  the  propriety  of  the  change, 
but  so  that  that  object  would  have 
commanded  the  court's  considera- 
tion. It  is  obvious,  1  think,  as  the 
complainants  and  informant  have 
acted  upon  leave  of  the  court,  had 
upon  notice  to  the  defendants,  which 
was  intended  by  the  court,  and 
understood  by  the  defendants,  to 
authorize  the  presentation  of  an  es- 
sentially dififerent  case  from  that 
which  the  supplemental  bill  and  in- 
formation makes,  that  the  motion  of 
the  defendants  should  be  granted. 
I  will  therefore  order  that  the  sup- 
plemental bill  and  information  be 
taken  from  the  files."  Buckingham 
V.  Corning,  2  Stew.  (N,  J.)  238;  Otteu 
v.  Railway  Co.,  24  N.  Y.  A  pp.  Div. 
180.. 


§  265.]         AMENDMENTS,  SUPPLEMENTAL    PLEADINGS,  ETC.  357 

The  supplemental  bill  is  a  distinct  and  separate  pleading 
from  the  original  bill  which  it  supplements,  but  the  original 
bill  and  the  supplemental  bill  when  filed  in  the  cause  must  be 
taken  together  and  constitute  the  statement  of  the  plaintiff's 
case;  it  may  be  filed  at  any  time  during  the  progress  of  the 
suit,  even  after  a  decree  and  during  the  pendency  of  an  appeal, 
provided  the  matters  pleaded  were  not  known  to  the  party 
filing  it  before  the  decree  was  entered.' 

The  supplemental  bill  may  be  substantially  in  the  following 
form: 

{Title  of  court  and  cause.) 

1.  Your  orator  respectfully  shows  unto  the  court  that  on  or 

about  the day  of ,  he  exhibited   his  original  bill  of 

complaint  in  this  court  against  C.  R,  alleging  in  substance, 
among  other  things  [here  state  the  substance  of  the  material 
allegations  of  the  original  bill  in  a  brief,  concise  way],  and 
praying  [here  give  the  prayer  of  the  bill  at  length]. 

2.  And  your  orator  further  shows  that  the  said  0.  D.  ap- 
peared and  filed  his  answer  to  such  bill,  and  your  orator  replied 
to  the  same.     [Here  state  the  actual  status  of  the  original  case.] 

3.  Your  orator  further  shows  by  way  of  supplement,  leave 
of  this  court  having  been  granted  therefor  [here  state  the 
facts  rendering  the  supplemental  bill  proper,  if  for  the  intro- 
duction of  new  parties,  the  facts  entitling  complainant  to  in- 
troduce them;  if  for  the  purpose  of  alleging  facts  — matter 
which  occurred  after  the  filing  of  the  original  bill,— so  state 
and  allege  the  material  facts  as  supplement  to  the  orio-inal 
bill].  "^ 

To  the  end,  therefore  [the  usual  interrogating  clause  if  de- 
sired], and  that  your  orator  may  have  the  full  benefit  of  such 

i  Story,  Eq.  PI.,  sec.  333;  Secor  v.  the  court;  or  it  may  be  used  to  im- 

Singleton,  41  Fed.  725.     In  Root  v.  peach  the  decree,  which  is  the  pe- 

Woolworth,    150   U.  S.  401,   the  su-  culiar  case  of  a  supplemental  bill  in 

preme  court  of  the  United  States  the  nature  of  a  bill  of  review,  of 

quote   from   Story's   Equity   Plead-  which  we  shall  treat  hereafter.     But 

ing,  section  338,  as  follows:  "  A  sup-  where  a  supplemental  bill  is  brought 

plemental  bill  may  also  be  filed  as  in   aid  of  a   decree,  it  is  merely  to 

well  after  as  before  a  decree;  and  carry  out  and  give  fuller  effect  to 

the  bill,  if  after  a  decree,  may  be  that  decree,  and  not  to  obtain  relief 

either  in  aid  of  the  decree,  that  it  of  a   different   kind  on  a  different 

may  be  carried  fully  into  execution,  principle;  the  latter  being  the  prov- 

or   that    proper   directions  may  be  ince  of  a  supplementary  bill  in  the 

given  upon  some  matter  omitted  in  nature  of  a   bill  of  review,  which 

the  original  bill,  or  not  put  in  issue  cannot  be  filed  without  leave  of  the 

by  it,  or  by  the  defense  made  to  it;  court" 
or  to   bring  forward  parties  before 


358      AMENDMENTS,  SrPPLEMENTAL  PLEADINGS,  ETC.       [§§  266,  267. 

suit  and  proceedings  against  the  said  [the  new  parties,  if  any], 
and  may  have  the  same  relief  against  him  as  he  might  or 
would  have  had  against  the  said  C.  D.  [the  original  party],  op 
that  your  orator  may  have  such  further  and  other  relief  in  the 
premises  as  to  the  court  shall  deem  meet.  May  it  please  the 
court  to  grant  [here  pray  for  subpoena  if  new  parties  are  in- 
troduced]. 

Then  follow  with  the  prayer  for  relief. 

§  266.  Proceedings  upon  filing  supplemental  bill. —  If  the 
supplemental  bill  introduces  new  parties  to  the  suit,  it  will  be 
necessary  to  issue  the  usual  writ  of  subpoena  to  bring  them 
into  court  to  answer  the  case  made  against  them.  But  if  no 
new  parties  are  added,  it  will  not  be  necessary  to  issue  the 
writ  of  sul)poena,  because  the  parties  are  already  in  court  and 
have  notice  of  the  proceedings  and  of  the  contents  of  the  sup- 
plemental bill,  for  by  the  rules  and  practice  of  the  courts  it  is 
required  that  a  copy  of  it  shall  be  served  upon  the  defendants, 
and  the  proceedings,  so  far  as  applicable,  are  similar  to  the 
proceedings  upon  the  filing  of  an  original  bill.^ 

§  267.  Defenses  to  the  supplemental  bill  are  the  usual 
defenses  in  equity. —  The  supplemental  bill  is  subject  to  the 
defenses  usually  employed  in  an  equity  case.  The  defendant 
may  demur,  plead  or  answer  for  substantially  the  same  rea- 
sons that  govern  each  of  these  defenses  when  applied  to  an 
original  bill.  But  it  has  been  held  that  the  objection  that  the 
supplemental  bill  was  filed  without  leave  of  the  court  is  not 
ground  for  a  demurrer,  but  that  the  defendant  may  move  the 
court  to  dismiss  the  bill;  the  granting  of  the  motion  resting 
in  the  discretion  of  the  court;-  and  the  same  proceedings  may 
be  had  if  the  bill  filed  is  not  warranted  by  the  order  granting 
the  plaintifl:'  leave  to  tile  it;  but  where  the  supplemental  bill 
does  not  allege  such  matters  as  will  warrant  the  filing  of  it,  it 
is  demurrable.*  And  where  the  bill  shows  upon  its  face  that 
the  facts  alleged  in  it  were  known  to  the  plaintiff,  and  might 

1  In  Shaw  v.  Bill,  95  U.  S.  10,  14,  where  the  parties  have  already  been 

the  court  say:    "The  fact  that  pro-  served,  no  further  subpoena  for  them 

cess  of  subpoena  was  not  issued  upon  is  required."  Danl.  Ch.  PI.  &  Pr.  1680. 

the  supplemental  bill  is  of  no  conse-  2  Henry  v.  Insurance  Co.,  45  Fed. 

quence.     Such  process  is  only  neces-  299,  303. 

sary  where  new  parties  are  brought  ^  j)anL  Ch.  PI.  &  Pr.  1682;  Bowyer 

in.     The  supplemental  bill  is  a  mere  v.  Bright,  13  Price  (Eng.),  316. 
adjunct  to  the    original    bill,   and, 


§  268.]        AMENDMENTS,  SUPPLEMENTAL    PLEADINGS,  ETC. 


359 


have  been  taken  advantage  of  by  amendment,  the  bill  will  be 
demurrable;  or  when  by  its  allegations  it  appears  upon  the 
face  of  the  bill  that  its  object  and  purpose  is  entirely  distinct, 
contradictory  and  antagonistic  to  the  original  bill,  it  is  demur- 
rable.i  And  so  any  objection  appearing  upon  the  face  of  the 
bill  showing  that  it  is  without  equity,  that  it  is  not  properly 
supplemental  to  the  original  bill,  that  it  is  filed  without  author- 
ity, may  be  raised  by  demurrer.  Following  the  usual  practice 
in  equity  courts,  if  the  objection  does  not  appear  upon  the  face 
of  the  bill,  it  may  be  taken  by  plea  or  answer,  as  the  case  may 
be;  but  a  plea  that  has  been  once  interposed  to  the  original 
bill  and  overruled  cannot  be  pleaded  to  the  supplemental  bill.^ 

If  the  defendant  has  not  filed  a  demurrer,  plea  or  answer  to 
the  original  bill  he  may,  if  he  desires  to  do  so,  demur,  plead 
or  answer  the  original  and  supplemental  bill  together;  or  he 
may  demur,  plead  or  answer  each  bill  separately  if  he  chooses. 
If  he  has  answered  the  original  bill  he  should  file  his  answer 
to  the  supplemental  bill,  unless  the  allegations  of  the  supple- 
mental bill  have  been  sufficiently  and  fully  answered  in  his 
answer  to  the  original  bill.  The  plaintiff,  on  the  coming  in 
of  the  answer,  should  file  his  replication,  and  the  issue  is  made 
up  according  to  the  rules  and  practice  of  the  equity  court.  If 
there  has  been  no  replication  filed  in  the  original  suit,  a  gen- 
eral replication  may  be  filed  to  the  whole  record,  and  it  will 
put  in  issue  the  allegations  in  all  the  answers.' 

§  268.  An  original  bill  in  the  nature  of  a  supplemental 
1)111. —  When  new  parties  are  introduced  by  the  supplemental 
bill  it  is  necessary  to  fully  state  the  whole  case,  for  the  orig- 
inal bill  was  not  filed  against  them  and  its  allegations  are  not 
with  reference  to  them,  and  they  cannot  be  brought  before  the 
court  and  compelled  to  answer  it.  And  so  where  a  supple- 
mental bill  is  one  containing  all  the  allegations  of  fact  neces- 
sary to  make  out  the  case  and  bring  in  new  parties,  it  is  called 

1  Danl.  Ch.  PI.  &  Pr.  1681;  Henry  v.  same  person,  as  stated  in  the  orig- 

Insurance  Co.,  45  Fed.  299,  303;  Story,  inal  bill." 

Eq.   PI.,   sec.    339:     "To  entitle   the  2  Pentlarge  v.   Pentlarge,  23  Fed, 

plaintiff  to  file  a  supplemental  bill,  412. 

and  thereby  to  obtain  the  benefit  of  »  Leonard  v.  Cook  (N.  J.  Eq.,  1890), 

the  former  proceedings,  it  must  be  21  Atl.  47. 
in  respect  to  the  same  title,  in  the 


360  AMENDMENTS,  SUPPLEMENTAL    PLEADINGS,  ETC.         [§  269. 

an  original  bill  in  the  nature  of  a  supplemental  bill.  But 
where  the  same  parties  and  the  same  interests  remain,  the 
change  only  being  as  to  matters  of  substance  and  not  to  parties, 
the  bill  is  called  a  supplemental  bill.  The  distinction  is  rather 
more  technical  than  substantial,  but  seems  to  exist. 

§  269.  A  supplemental  answer. —  When  material  facts  have 
occurred  since  the  defendant  filed  his  answer  in  the  cause,  or 
where  he  failed  by  reason  of  mistake,  but  without  negligence 
upon  his  part,  to  state  certain  facts  material  to  his  defense,  or 
where  the  defendant  at  the  time  of  putting  in  his  answer  was 
ignorant  of  certain  facts  material  to  his  defense,  which  facts 
have  just  come  to  his  knowledge,  in  such  like  cases  he  will  be 
permitted  to  file  a  supplemental  answer.  But  the  defendant 
should  not  delay  moving  for  leave  to  file  such  an  answer,  for 
the  courts  are  said  to  be  reluctant  to  grant  permission  to  file 
supplemental  answers  after  any  considerable  delay;  nor  will 
permission  be  granted  unless  under  very  peculiar  circumstances, 
and  when  the  defendant  makes  out  a  strong  case,  especially 
when  the  granting  of  it  would  operate  to  the  prejudice  of  the 
complainant.^  The  courts  are  more  apt  to  permit  such  an  an- 
swer where  by  it  the  effects  of  denials  will  be  removed,  or  the 
plaintiff  given  the  benefit  of  material  admissions.^ 

In  Suydam  etal.  v.  Truesdale '  the  court  observed :  "  A  supple- 
mental answer  is  the  proper  course  where  a  new  matter  of 
defense  is  discovered  after  the  putting  in  of  the  answer,  but 
which  existed  before.*  But  as  the  application  is  to  the  discre- 
tion of  the  court,  it  is  essential  that  the  new  matter  of  defense 
should  have  been  recently  discovered.  If  known  before  the 
answer  was  filed,  the  application  will  of  course  be  refused,  es- 
pecially if  the  introduction  of  the  new  matter  is  calculated  to 
embarrass  the  further  proceedings  in  the  case,  and  is  not  essen- 
tial as  substantial  matter  of  defense.     .     .     .     Although  courts 

*  Graves  v.  Niles,  Harr.  Ch.  (Mich.)  exclude  the  proposed  defense,   the 

332,335;  Wells  v.  Wood,  10  Ves.  Jun.  court   will   not  refuse  to    allow   it. 

401;    Bowen   v.  Cross,  4  Johns.  Ch.  Hall  v.  Home  Bldg.  Co.,  56  N.  J.  Eq. 

(N.  Y.)  375.     But  where  the  answer  304,  38  Atl.  447. 

is  based   upon  an  event  which  has  2  i  Danl.  Ch.  Pi.  &  Pr.  780,  78L 

happened  since  the  filing  of  the  bill,  *  6  McLean  (U.  S.),  459. 

unless  there  be  some  circumstances  *  Talmage  v.  Pell,  9  Paige  (N.  Y.), 

in  relation  to  the  parties  or  the  sub-  410. 
ject-matter  of  the  suit  which  would 


§  270.]         AMENDMENTS,  SUPPLEMENTAL    PLEADINGS,  ETC.  361 

of  equity  require  all  parties  in  interest  to  be  brought  before 
them,  in  order  that  the  controversy  may  be  finally  settled,  yet 
the  court  will  not  extend  a  ready  ear  to  such  applications, 
when  by  doing  so  justice  must  be  defeated,  and,  by  refusing 
the  application,  no  injury  can  be  done  to  the  defendants." 

§  270.  Leave  of  court  must  be  obtained.— The  practice  as 
to  filing  a  supplemental  answer  is  quite  like  that  which  pro- 
vails  when  it  is  desired  to  file  a  supplemental  bill;  it  can  only 
be  done  by  obtaining  leave  of  court.     Leave  is  obtained  upon 
application  made  in  the  cause  for  that  purpose.     The  applica- 
tion, or  petition  to  file  an  amended  answer,  should  set  forth 
all  of  the  reasons  upon  which  the  defendant  bases  his  claim  to 
file  such  an  answer;  that  the  defendant  did  not  know,  at  the 
time  of  answering,  the  facts  which  he  proposes  to  allege  in 
the  proposed  supplemental  answer;  that  the  facts  in  the  orig- 
inal answer  were  by  mistake  erroneously  stated,  or  where  it 
is  evident  that  a  mistake  has  arisen  by  a  mere  slip  or  unin- 
tentional statement;  that  he  was  ignorant  of  the  defense  pro- 
posed to  be  set  up  in  the  supplemental  answer  during  the 
previous  stage  of  the  suit,^  and  that  he  is  in  no  way  in  de- 
fault for  not  having  made  his  application  at  an  earlier  time,  or 
some  other  good  reason  for  making  the  application.^     The  ap- 
plication must  be  sworn  to  or  accompanied  with  an  affidavit 
verifying  the  facts  upon  which  he  bases  it."     But  where  the 
application  alleges  matters  which  are  good  legal  reasons,  and 
where  it  is  apparent  that  to  deny  the  application  would  be  to 
inflict  injustice  upon  the  defendant,  the  court  will  grant  if 
The  better  practice,  however,  is  that  which  is  required  in  some 

1  Giles  V.  Giles.  1  Bailey  (S.  C).  428.  notion  of  any  attempt  of  the  party 

In  Smith  v.  Babcock,  3  Sumn.  (U.  S.)  to  evade  the  justice  of  the  case  or  to 

583,  585,  the  court  in  discussing  this  set  up  new  and  ingeniously  contrived 

subject  say:    "Courts  of  equity  are  defenses  or  subterfuges."    Williams 

very  indulgent  in  allowing  amend-  v.  Gibbes,  20  How.  (U.  S.)  535;  Suy- 

ments.      But    when    application    is  dam  v.  Truesdale,   6  McLean,   459; 

made  to  amend  an  answer  in  mate-  Bowen  v.  Cross,  4  Johns.  Ch.  (N.  Y.) 

rial  facts,  or  to  change  essentially  the  375. 

grounds  taken  in  the  original  an-  2  United,  etc.  Co.  v.  Long  Dock  Co., 

swer,  courts  of  equity  are  exceed-  41  N.  J.  Eq.  407,  5  Atl.  578. 

ingly  slow  and  reluctant  in  acced-  ^McKim    v.   Thompson,   1    Bland 

ing  to  it.     To  support  such  applica-  (Md.),  150;  Thomas  v.  Doub,  1  Md.  253. 

tions  they  require  very  cogent  cir-  *  May  v.  Coleman,  84  Ala.  335. 
cumstances,  and  such  as  repel  the 


362  AMENDMENTS,  SUPPLEMENTAL    PLEADINGS,  ETC.         [§  271. 

jurisdictions,  namely,  to  accompany  the  application  for  leave 
to  file  an  amended  answer  with  the  answer  which  the  defend- 
ant desires  to  file  as  his  supplemental  answer  in  the  cause; 
that  the  court  may  determine  the  character  of  the  new  answer, 
whether  it  contains  such  a  defense  as  the  defendant  in  justice 
and  in  equity  ought  to  be  permitted  to  make,  and  whether 
equity  and  good  conscience  demand  that  permission  to  file  it 
be  granted.^  This  application  to  file  a  supplemental  answer 
may  be  made  at  any  time  during  the  pendency  of  the  cause.^ 

III.  Bills  of  Revivor. 

§  271.  The  nature  of  the  bill  of  revivor. —  A  bill  of  re- 
vivor may  be  said  to  be  what  its  name  implies  —  a  l)ill  to 
revive  an  action  in  equity  which  has  become  abated  or  defect- 
ive before  its  final  consummation.  The  abatement  of  an  action 
in  equity  is  not  considered  in  the  same  sense  as  the  abatement 
of  an  action  at  common  law,  where  it  is  deemed  to  be  entirely 
overthrown  or  destroyed,  but  rather  in  the  sense  of  a  suspen- 
sion of  the  proceedings  caused,  generally,  by  the  death  or 
changed  relations  of  the  original  parties  to  the  action.  Usually 
the  only  reason  for  filing  a  bill  of  revivor  is  because  of  the 
death  of  one  of  the  parties,  or  formerly  the  marriage  of  a 
female  party,  where  it  would  affect  her  interest  and  the  pro- 
ceedings in  the  suit.' 

Un  Schmidt  v.  Braley,  112  111.  48.  123;  Martin  v.  Atkinson,  5  Ga.  390. 
the  court  say:  "It  does  not  appear  But  see  Montague  v.  Selb,  106  III.  49. 
from  the  record  what  was  the  char-  -*  Story,  Eq.  PI.,  at  section  354,  says: 
acter  of  the  new  answer  which  ap-  "An  abatement,  in  the  sense  of  the 
pellants  proposed  to  file;  nor.  Indeed,  common  law,  is  an  entire  overthrow 
does  it  appear  that  an  answer  had  or  destruction  of  the  suit,  so  that  it 
been  prepared  at  all.  How  can  this  is  quashed  and  ended.  But  in  the 
court  say  there  was  error  in  refusing  sense  of  courts  of  equity  an  abate- 
to  permit  an  answer  to  be  filed  which  ment  signifies  only  a  present  suspen- 
is  not  embodied  in  the  record?  Even  sion  of  all  the  proceedings  in  the 
if  we  assume  one  was  prepared  by  suit,  from  the  want  of  proper  parties 
counsel,  which  we  have  no  right  to  capable  of  proceeding  therein.  At 
do,  still  we  cannot  judicially  know  the  common  law,  a  suit,  when 
wlat  it  contained,  and  must  presume  abated,  is  absolutely  dead.  But,  in 
it  was  of  such  a  character  as  war-  equity,  a  suit,  when  abated,  is  (if 
ranted  the  court  below  in  refusing  to  such  an  expression  be  allowable) 
permit  it  to  be  filed."  merely  in  a  state  of  suspended  ani- 

^Smallwood  v.  Lewin,  13  N.  J.  Eq.  mation;  and  it  may  be  revived.   The 


§  271.]         AMENDMENTS,  SUPPLEMENTAL   PLEADINGS,  ETC. 


3G3 


The  bill  has  its  foundation  in  the  continued  interest  involved 
in  the  litigation  of  the  party  who  is  dead;  if  the  interest, 
therefore,  should  end  with  the  death  of  the  party,  a  bill  of 
revivor  would  have  no  foundation;  or,  if  the  interest  wholly 
survives  to  another  party,  or  other  parties  to  the  original 
bill,  no  revivor  would  be  necessary.  And  if  there  has  been 
no  appearance  before  the  death  of  the  party  defendant,  the 
suit  would  not  abate,  for  until  the  appearance  of  the  de- 
fendant there  is  no  suit  pending  against  him.  In  such  case, 
another  or  original  bill,  or  an  original  bill  in  the  nature  of  a 
supplemental  bill,  would  have  to  be  filed  to  bring  in  the  rep- 
resentatives of  the  deceased  defendant.^  And  so  unless  there 
is  some  authority  in  the  statutes  creating  it,  or  in  its  charter, 
authorizing  the  continuance  of  pending  cases,  the  dissolution 
of  a  corporation  which  is  a  party  to  the  suit  abates  the  action, 
because  the  existence  of  the  corporation  as  a  legal  entity  is 
ended,  and  judgment  could  not  be  rendered  against  it.  This, 
in  National  Bank  v.  Colby, ^  is  said  to  be  "  the  i  ule  with  respect 


death,  or  marriage,  of  one  of  the 
original  parties  to  the  suit  is  the 
most  common,  if  not  the  sole,  cause 
of  the  abatement  of  a  suit  in  equity." 
Mitf.  Eq.  PL,  by  Jeremy,  98.  99; 
Phelps  V.  Sproule,  4  Sim.  318.  In 
Clark  V.  Mathewson,  12  Pet.  (Q.  S.) 
164,  the  court  say:  "The  death  of 
either  party  pending  the  suit  does 
not,  where  the  cause  of  the  action 
survives,  amount  to  a  determination 
of  the  suit  It  might  in  suits  at 
common  law^,  upon  the  mere  princi- 
ples of  that  law,  have  produced  an 
abatement  of  the  suit,  which  would 
have  destroyed  it.  But  in  courts  of 
equity  an  abatement  of  the  suit,  by 
the  death  of  a  party,  has  always  been 
held  to  have  a  very  different  effect; 
for  such  abatement  amounts  to  a 
mere  suspension,  and  not  to  a  deter- 
mination of  the  suit.  It  may  again 
be  put  in  motion  by  a  bill  of  revivor, 
and,  the  proceedings  being  revived, 
the  cause  proceeds  to  its  regular  de- 
termination as  an  original  bill.  The 
bill  of  revivor  is  not  the  commence- 


ment of  a  new  suit,  but  is  the  mere 
continuation  of  the  old  suit." 

1  United  States  v.  Fields,  4  Diatchf. 
(U.  S.)  326;  Crowfoot  v.  Mander,  9 
Sim.  396:  Story,  Eq.  PI.,  sec.  357. 

m  Wall.  (U.  S.)  609,  615.  As  to 
consolidation  of  two  corporations  see 
Edison  Electric  Lt.  Co.  v.  Westing- 
house,  34  Fed.  232.  But  it  has  been 
held  that  the  entering  into  liquida- 
tion by  a  national  bank  does  not 
abate  actions  pending  against  it.  In 
National  Bank  v.  Insurance  Co.,  104 
U.  S.  .54,  74,  "it  is  clearly,  we  think, 
the  intention  of  thelawthatitshould 
continue  to  exist,  as  a  j  erson  in  law, 
capable  of  suing  and  being  sued, 
until  its  affairs  and  Lusinessare  com- 
pletely settled.  The  proceeding  pre- 
scribed by  the  law  seems  to  resemble, 
not  the  technical  dissolution  of  a 
corporation,  without  ;,ny  saving  as 
to  the  common-law  consequences, 
but  rather  that  of  the  dissolution  of 
a  copartnership,  which,  nevertheless, 
continues  to  subsist  for  the  purpose 
of  liquidation  and  winding  up  it» 


364  AMENDMENTS,  SUPPLEMENTAL    PLEADINGS,  ETO.        [§  271. 

to  all  corporations  whose  chartered  existence  has  come  to  an 
end,  either  by  lapse  of  time  or  decree  of  forfeiture,  unless,  by 
statute,  pending  suits  be  allowed  to  proceed  to  judgment  not- 
withstanding such  dissolution."  And  in  Greeley  v.  Smith  ^ 
Judge  Story,  in  discussing  this  question,  says:  "I  cannot  dis- 
tinguish between  the  case  of  a  corporation  and  the  case  of  a 
private  person  djnng  pendente  lite.  In  the  latter  case  the  suit 
is  abated  at  law,  unless  it  is  capable  of  being  revived  by  the 
enactments  of  some  statute,  as  is  the  case  as  to  suits  pending 
in  the  courts  of  the  United  States,  where,  if  the  right  of  action 
survives,  the  personal  representative  of  the  deceased  may  ap- 
pear, and  prosecute  or  defend  the  suit.  No  such  provision 
exists  as  to  corporations,  nor,  indeed,  could  exist,  without  re- 
viving the  corporation  pro  hac  vice,  and,  therefore,  any  suit 
pendingagainst  it  atitsdeath  abates  by  mere  operation  of  law." 

If  the  original  suit  involved  the  personal  assets  only  of  the 
deceased  party,  the  revivor  would  be  against  the  executors  or 
administrators,  as  they  would  be  the  only  proper  persons  to 
represent  such  an  interest  of  the  deceased  party.  But  if  the 
suit  involved  the  real  estate  of  the  deceased  party,  then  his 
heir  or  heirs  would  be  the  proper  parties  to  the  bill  of  revivor. 
Modern  statutes,  however,  and  rules  of  practice  providing  for 
the  revivor  of  the  action  against  the  heirs  or  personal  repre- 
sentatives of  a  deceased  party  by  suggesting  the  death  of  the 
party  upon  the  record,  and  upon  motion  obtaining  an  order  of 
the  court  that  the  suit  be  revived  against  the  persons  who 
would  legally  represent  the  interests  of  the  deceased,  have  gen- 
erally supplanted  the  bill  of  revivor.  And  while  a  bill  of  re- 
vivor might  be  used,  the  practice  has  become  so  simplified  that 
it  is  not  often,  if  ever,  employed.^ 

The  practice  in  the  United  States  court  is  prescribed  by  rule." 

business."    As  to  abatement  in  case  the  cause  may  be  revived  against  or 

of  appointment  of  receiver,  see  Bank  in  favor  of  his  personal  representa- 

of  Bethel  v.   Pahquioque   Bank,    14  tives  or  heirs;  such  representatives 

Wall.  (U.  S.)383.  may  appear  m  the  action  in  lieu  of 

13  Story  (U.   S.),  657;  Farmers'  &  proceedings  to  revive  the  cause  with- 

Mechanics'  Bank  v.  Little,  8  Watts  out  filing  a  bill  of  revivor.     Parker 

&Serg.   (Pa.)  207;  Mumma  v.  Poto-  v.  Simpson,  180  Mass.  334,  62  N.  E.  401. 

mac  Co.,  8  Pet  (U.  S.)  28L  See  also  Michigan  statute,  Stevenson 

2  In  Massachusetts  it  is  provided  by  v.  Kurtz,  98  Mich.  493. 

statute  that,  if  a  party  to  a  suit  dies,  ^  u.  S.  Eq.  Rule  56.     "Whenever  a 


§§  272,  273.]       AMENDMENTS,  SUPPLEMENTAL  PLEADINGS,  ETC.       365- 

§  272.  The  interest  necessary  to  snpport  the  bill. —  It  is 

the  interest  of  the  deceased  party  to  the  original  bill  that  sur- 
vives that  is  the  basis  of  a  bill  of  revivor,  and  where  his  inter- 
est does  not  survive  a  bill  of  revivor  cannot  be  supported.  And 
so  if  the  death  of  the  party  to  the  original  suit  would  determine 
the  controversy  which  is  the  object  of  the  original  bill,  and  no 
person  becomes  entitled  to  the  interest  of  the  deceased  party, 
as,  for  example,  in  case  of  the  death  of  a  tenant  for  life,  or  one 
having  merely  a  temporary  or  contingent  interest,  no  subse- 
quent proceedings  would  be  required,  and  a  bill  of  revivor 
could  not  be  supported.  And  so  where  the  parties  were  joint 
tenants,  the  interest  of  the  deceased  tenant  would  become  the 
property  of  the  surviving  tenant,  and  in  such  case  no  bill  of 
revivor  would  be  necessary,  for  the  suit  could  be  prosecuted, 
by  the  surviving  tenant,  who  would  have  the  whole  interest  in 
the  matter  in  litigation.  But  this  would  not  be  the  rule  in 
case  of  a  tenant  in  common,  for  upon  the  death  of  one  of  them 
his  rights  would  descend  to  his  legal  representatives  or  heirs,, 
and  the  suit  might  be  revived. 

Where  any  of  the  parties  plaintiff  refuse  to  join  in  the  filing 
of  a  bill  of  revivor,  their  co-plaintiffs  may  file  the  bill  in  their 
own  name,  making  not  only  the  heirs  or  representatives  of  the 
deceased  party  defendants  to  the  bill  of  revivor,  but  also  the 
plaintiffs  in  the  original  bill  who  have  refused  to  join  them, 
because  their  interests  must  necessarily  be  represented. 

§273.  Parties  to  the  bill  of  revivor. —  If  the  suit  abates 
because  of  the  death  of  complainant,  it  can  only  be  revived  by 
his  heirs  or  personal  representatives,  depending  upon  the  sub- 
ject-matter of  the  suit.  If  the  subject-matter  of  the  suit  be 
real  property,  or  interests  which  descend  directly  to  his  heirs, 

suit  in  equity  shall  become  abated  poena  shall,  as  of  course,  be  issued 

by  the  death  of  either  party,  or  by  by  the  clerk,  requiring  the   proper 

any  otlier  event,  the  same  may  be  representatives  of  the  other  party  to 

revived  by  a  bill  of  revivor,  or  a  bill  appear  and  show  cause,  if  any  they 

in  the  nature  of  a  bill  of  revivor,  as  have,  why  the  cause  should  not  be 

the  circumstances  of  the  case  may  revived.     And  if  no   cause  shall  be 

require,  filed  by  the  proper  parties  shown  at  the  next  rule-day  which 

entitled  to  revive  the  same,  which  shall  occur  after  fourteen  days  from 

bill  may  be  filed  in  the  clerk's  office  the  time  of  the  service  of  the  same 

at  any  time,  and,  upon  suggestion  of  process,  the  suit  shall  stand  revived 

the  facts,  tiie  proper  process  of  sub-  as  of  coursa" 


3G(J  AMENDMENTS,  SUPPLEMENTAL    PLEADINGS,  ETC.         [§  273. 

and  not  to  his  personal  representatives,  the  bill  of  revivor 
should  be  filed  by  his  heirs  as  plaintiffs,  but  if  the  subject- 
matter  of  the  suit  be  personalty,  then  the  executor  or  admin- 
istrator of  the  deceased  party  would  be  the  proper  plaintiff  to 
a  bill  of  revivor;  if  both  personalty  and  realty  be  the  subject 
of  the  litigation,  then  the  bill  of  revivor  may  be  filed  by  the 
heirs  and  the  personal  representatives  of  the  deceased  as  plaint- 
iffs. The  only  proper  party  plaintiff  is  the  party  who  has 
the  continuing  interest  in  the  subject  of  the  litigation,  whose 
title  or  control  of  the  subject-matter  comes  to  him  by  reason 
of  the  death  of  the  party  to  the  original  suit.  And  so  it  has 
been  held  that  an  assignee  or  purchaser  shall  not  have  a  bill 
of  revivor,  because  there  is  want  of  privity;  nor  is  a  devisee 
or  alienee  a  proper  party. 

In  Peerv.  Cookerow^  it  is  said  by  the  court:  "A  bill  of  re- 
vivor, properly  so  called,  lies  where  a  death  intervenes,  and  it 
is  necessary  to  bring  the  proper  representatives  of  the  deceased 
party  in  the  realty  or  in  the  personalty  before  the  court.  In 
such  case  there  is  no  other  fact  to  be  ascertained  than  whether 
the  new  party,  brought  before  the  court  as  executor  or  heir  at 
law,  has  the  character  imputed  to  him.  If  he  has,  the  revivor 
is  of  course. 

But  if  the  death  of  the  party  is  attended  with  such  a  trans- 
mission of  his  interest  that  the  title  to  it,  as  well  as  the  person 
entitled,  may  be  litigated  in  the  court  of  chancer}',  as  in  the 
case  of  a  devise  of  real  estate,  the  suit  cannot  be  continued  by 
a  bill  of  revivor.  An  original  bill  in  the  nature  of  a  bill  of 
revivor,  upon  which  the  title  may  be  litigated,  must  be  filed. 
And  hence  a  devisee  or  alienee  cannot  bring  a  bill  of  revivor 
for  want  of  privity;  and  the  reason  is  that  the  heir  or  execu- 
tor may  have  a  right  to  contest  such  disposition,  and  therefore 
he  must  bring  his  original  bill,  and  make  the  heir  or  execu- 
tor a  party." 

It  has  been  held,  however,  that  in  case  of  the  death  of  an 

114  N.  J.   Eq.  361,  365;   Story,  Eq.  Hord  v.  Marshall,  85  Ky.  (5  Dana), 

PL,  sees.  377,  378;  1  HolT.  Cli.  Pr.  379,  495;  Padgely  v.  Bond,  18  Md.  443.  In 

380;  Lanning  V.  Cole,  6  N.  J.  Eq.  102;  Barnett  v.  Powers,  40  Mich.  317,  it 

Russell  V.  Craig,  3  Bibb  (Ky.),  377;  was  held  that   a   bill  of  revivor  is 

Putnam  v.  Putnam,  4  Pick.  (Mass.)  not  the  proper  remedy  to  bring  in 

139;  Miles  v.    Miles,   32  N.   H.    147;  parties  claiming  otherwise  than  by 

Hawkins   v.    Chapman,    36  Md.   83;  operation  of  law. 


§§  2715  275.]       AMENDMENTS,  SUPPLEMENTAL  PLEADINGS,  ETC.       367 

administrator  the  suit  may  be  revived  in  the  name  of  the  ad- 
ministrator de  honis  non,  who  would  be  the  legal  representa- 
tive of  the  deceased  administrator  in  the  cause. 

Where  there  are  several  surviving  plaintiffs  to  the  original 
bill  all  should  be  made  parties  plaintiff  to  the  bill  of  revivor, 
for  the  reason  that  all  and  each  of  them  represent  the  interest 
to  be  litigated  and  have  an  interest  in  continuing  the  abated 
litigation,  and  therefore  it  is  a  rule  that  should  any  of  them 
refuse  to  join  in  the  bill  of  revivor  as  plaintiffs  they  may  be 
made  defendants. 

§  271.  Same  subject  —  Parties  defendant. —  If  the  suit 
has  abated  because  of  the  death  of  one  of  several  complain- 
ants, it  may  be  revived  by  a  bill  of  revivor  filed  by  the  per- 
sonal representatives  of  the  deceased  complainant;  in  such 
case  all  the  surviving  complainants  and  the  defendants  to  the 
original  bill  should  be  made  defendants  to  the  bill  of  revivor; 
or  it  may  be  revived  by  the  surviving  complainants  filing  a 
bill  of  revivor  against  the  representatives  or  heirs  of  the  de- 
ceased complainant  and  the  defendants  in  the  original  bill. 
If  the  abatement  is  caused  by  the  death  of  a  sole  complain- 
ant, it  may  be  revived  by  the  representatives  or  heirs,  as  may 
be  proper,  of  the  deceased  complainant  by  a  bill  of  revivor 
against  all  of  the  original  defendants.  If  the  abatement  is 
caused  by  the  marriage  of  the  sole  complainant,  it  may  be  re- 
vived by  a  bill  of  revivor  filed  by  the  husband  and  wife 
against  all  the  defendants  to  the  original  bill.  And  if  it 
abates  because  of  the  marriage  of  one  of  several  complainants, 
it  may  be  revived  by  a  bill  filed  by  all  of  the  surviving  com- 
plainants against  the  husband  and  wife  and  all  of  the  defend- 
ants to  the  original  bill  as  defendants;  or,  by  the  husband  and 
wife  against  all  of  the  other  complainants  and  all  of  the  de- 
fendants in  the  original  bill. 

The  rule  obtains  here  as  in  all  bills  of  complaint  that  all 
of  the  interests  involved  in  the  controversy  must  be  repre- 
sented. 

§  275.  Original  bills  in  the  nature  of  a  bill  of  revivor. — 
A  second  class  of  bills  in  the  nature  of  bills  of  revivor  is  orig- 
inal bills  in  the  nature  of  bills  of  revivor.  A  pure  bill  of  re- 
vivor lies  only  where  the  suit  has  been  abated  or  interrupted 
by  the  death  or  marriage  of  a  party,  and  in  such  case  the 


SOS  AMENDMENTS,  SUPPLEMENTAL    PLEADINGS,  ETC.         [§  375. 

onl}'-  question  to  be  determined  is  whether  the  new  party 
sought  to  be  brought  into  the  case,  and  in  whose  name  it  is 
sought  to  be  revived,  is  the  proper  person  to  represent  the  in- 
terest of  the  deceased  or  affected  party.  Is  he  the  heir  at  law 
or  the  personal  representative,  as  the  case  may  be  ?  If  he  is, 
the  revivor  is  decreed  as  matter  of  course.  But  we  have  al- 
ready seen  that  the  revival  of  the  suit  because  of  the  death  of 
the  party  is  not  always  the  only  question  necessary  to  be  de- 
termined, but  that  there  are  other  questions  that  affect  the 
subject-matter  in  litigation  and  necessarily  must  be  litigated 
in  order  to  settle  the  whole  controversy  involved,  and  in  such 
cases  a  pure  bill  of  revivor  would  not  be  sufficient  or  adequate. 
And  there  must  necessarily  be  incorporated  in  the  bill  these 
other  questions  which  are  necessary  to  be  settled  together  with 
the  reviving  of  the  case.  Such  bills  are  not  original  bills,  be- 
cause it  is  desired  to  continue  the  litigation  which  has  already 
been  commenced  and  is  in  progress,  and  to  add  to  it  the  new 
and  other  interests  which  have  arisen.  These  bills  are  original 
bills  in  the  nature  of  bills  of  revivor.  An  example  of  the 
necessity  of  such  a  bill  may  be  found  in  the  case  of  a  devise 
of  the  real  estate  which  is  the  subject  of  the  original  bill,  in 
the  name  of  the  devisor;  the  suit  cannot  be  revived  in  the 
name  of  the  devisee,  for  there  is  no  privity  of  blood  or  repre- 
sentation ;  the  mterest  of  the  deceased  is  not  transmitted  to 
him  by  operation  of  law,  as  in  the  case  of  an  heir  or  personal 
representative,  but  by  the  acts  of  the  parties. 

It  is,  as  is  said,  privity  of  estate,  or  title  by  act  of  the  party, 
rather  than  privity  of  blood  or  representation.  In  such  cases 
not  only  is  the  question  as  to  the  person  being  entitled  to  rep- 
resent the  interest  of  the  deceased  party  in  the  court  to  be  de- 
termined, but  also  his  right  to  the  interest  of  the  deceased 
which  has  been  transmitted  to  him;  that  is  to  say,  such  a  bill 
involves  the  determination  of  the  title  claimed  by  the  devisee 
as  well  as  the  prayer  to  revive  the  suit  in  his  name,  that  he 
may  have  the  same  benefit  of  the  original  bill  as  he  would  if 
it  had  not  been  abated. 

In  Douglass  v.  Sherman^  the  chancellor,  quoting  the  lan- 
guage of  Lord  Redesdale,  said:  "Wherever  a  suit  abates  by 

1 2  Paige  Ch.  (N.  Y.) 358;  Story,  Eq.  PI.,  sees.  377, 378;  2  Barb.  Ch.  Pr.  81. 82. 


§  276.]         AMENDMENTS,  SUPPLEMENTAL    PLEADINGS,  ETC. 


369 


the  death,  and  interest  of  the  person  whose  death  has  caused 
the  abatement  is  transmitted  to  that  representative  which  the 
law  gives  or  ascertains,  as  an  heir  at  law,  executor  or  adminis- 
trator, so  that  the  title  cannot  be  disputed,  at  least  in  the  court 
of  chancery,  but  the  person  in  whom  the  title  is  vested  is  alone 
to  be  ascertained,  the  suit  may  be  continued  by  a  bill  of  re- 
vivor merely."  The  chancellor,  further  continuing,  said:  .  .  . 
"  And  in  all  cases  where  by  the  death  of  a  party  the  suit  is 
abated,  and  his  interest  or  title  to  the  property  in  controversy 
is  transmitted  by  a  devise,  or  in  any  other  manner,  so  that  the 
title  as  well  as  the  person  entitled  may  be  a  subject  of  litiga- 
tion in  this  court,  the  suit  cannot  be  continued  by  a  bill  of  re- 
vivor. In  such  cases  an  original  bill  in  the  nature  of  a  bill  of 
revivor  and  supplement  must  be  filed,  on  which  the  question 
of  title  may  be  put  in  issue  and  litigated." 

§  276.  When  the  defendants  can  sustain  a  bill  of  revivor. 
It  has  been  held,  and  is  no  doubt  the  general  rule,  that  when 
the  abatement  has  occurred  for  any  cause  before  a  decree  in  the 
original  action,  the  suit  can  only  be  revived  by  the  plaintiff  or 
those  representing  him.  This  rule  is  no  doubt  based  upon  the 
theory  that  before  a  decree  is  rendered  settling  the  interests 
of  the  parties,  the  defendant  has  no  ascertained  or  recognized 
right  in  the  subject-matter  of  the  litigation;  but  after  the  de- 
cree has  been  found,  the  rights  of  the  parties  are  ascertained, 
and  the  defendant  is  entitled  equally  with  the  plaintiff  to  the 
benefit  of  it,  and  has  a  right  to  prosecute  it.  But  even  in  such 
case  it  would  have  to  appear  that  the  defendant  has  an  inter- 
est under  the  decree  in  the  further  prosecution  of  the  suit;  as, 
for  example,  an  interest  in  the  carrying  out  of  the  decree  or  a 
right  to  appeal.^  It  has  been  held,  however,  that  in  case  of  the 
death  of  some  of  the  defendants  before  decree,  "the  proper 
course  for  a  defendant,  who  wishes  to  speed  the  cause,  .  .  . 
is  to  move  for  an  order  that  the  complainants  revive  the  suit 
within  such  time  as  shall  be  directed  by  the  court,  or  that  their 
bill  be  dismissed  with  costs."^  This  holding,  however,  has 
been  doubted  ;  and  in  Lee  v.  Lee^  it  was  held  that  the  court  had 
no  such  power. 

iPeerv.  ( •ookerovv.2Beas.(N.  J.)1H6.  » 1  Hare  (S.  C),  617;  Hoxie  v.  Carr, 

2Harrin-toii  v.  Becker.  2  Barb.  Cli.  1  Sunin,  (U.  S.)  17^,  178;  Cliowick  v. 

<N.  Y.)  7.-)  7<j.  Dime^s.  3  Beav.290.   In  Story's  Fquity 
•24 


370  AMENDMENTS,  SUPPLEMENTAL   PLEADINGS,    ETC.         [§  277. 

In  Reid  v.  Stuarfs  Ex'r^  the  court,  after  discussing  the  stat- 
utory modes  of  reviving  a  suit  in  equity  and  determining  that 
there  was  nothing  in  the  statutory  law  preventing  the  use  of  a 
bill  of  revivor  if  the  parties  chose  to  resort  to  it,  said :  "  As  a 
general  rule  the  plaintiff  in  a  chancery  suit  can  abandon  his 
cause  at  his  pleasure,  and  if  having  this  right  he  dies,  his  rep- 
resentative, either  heir  or  administrator,  to  whom  his  interest 
survives,  may  revive  the  suit  if  he  pleases,  but  of  course  in 
such  a  case  he  alone  can  revive  it  either  by  the  bill  of  revivor 
or  in  the  statutory  mode.  But  when  the  defendants  have  ac- 
quired such  an  interest  in  the  cause  that  the  plaintiff  would 
not  be  allowed  to  dismiss  the  cause  at  his  pleasure,  or  where 
there  has  been  such  an  order  of  reference  in  the  cause  as  that, 
if  a  balance  should  be  found  in  favor  of  the  defendant,  he 
would  be  entitled  to  a  decree  against  the  plaintiff,  and  in  that 
stage  of  the  cause  the  plaintiff  dies,  the  defendant  would  have 
a  right  to  revive  by  bill  of  revivor,  or  by  statutory  modes." '^ 

§  277.  The  form  of  tlie  bill  of  revivor. —  Where  the  ob- 
ject of  the  bill  is  purely  and  simply  to  revive  the  cause  which 
has  abated  by  reason  of  the  death  or  marriage  of  a  party, 
there  would  seem  to  be  no  additional  allegations  of  fact  as  to 
the  object  of  the  original  suit  necessary  to  be  alleged,  and  the 
only  facts  to  be  found  by  the  court  upon  which  to  base  a  de- 
cree for  revival  are  those  necessary  to  show  that  the  party 
plaintiff  in  the  bill  of  revivor  is  entitled  to  revive  the  suit; 
and  so  in  a  bill  of  revivor  it  is  only  necessary  to  state  the 
nature  of  the  original  bill,  and  to  such  an  extent  as  will  show 
that  the  plaintiff  is  entitled  to  revive  the  cause,  and  there  must 
be  no  variance  between  this  statement  and  the  statement  of 

Pleading,  section  369,  it  is  said:  a  bill  of  revivor,  refuse  to  join  in  it, 
"When  there  are  several  plaintiffs,  they  may  be  made  parties  defend- 
er several  defendants,  all  having  an  ant."  NicoU  v.  Roosevelt,  3  Johns, 
interest,  which  survives,  the  death  Ch.  (N.  Y.)  60;  Fallowes  v.  William- 
of  any  one  of  them  makes  an  abate-  son,  11  Ves.  Jr.  306. 
ment  only  as  to  himself,  and  the  suit  i  20  W.  Va.  382,  392. 
is  continued  as  to  the  rest  who  are  2  Benson  v.  Wolverton,  16  N.  J.  Eq. 
living.  But  if  anything  is  required  110;  Keene  v.  Lafarge,  1  Bosw.  (N. 
to  be  done  by  or  against  the  interest  Y.)  672,  and  16  How.  Pr.  377;  Banta 
of  the  party  who  is  dead,  his  proper  v.  Marcellus,  2  Barb.  (Sup.  Ct  N.  Y.) 
representative  must  be  brought  be-  373;  McDaniel  v.  Baskerville,  13 
fore  the  court  by  a  bill  of  revivor.  Grat.  (Va.)  233;  Anderson  v.  White 
If  some  of  tlie  plaintiffs,  entitled  to  et  al.,  10  Paige  (N.  Y.),  575. 


§  278.]        AMENDMENTS,  SUPPLEMENTAL    PLEADINGS,  ETC.  371 

the  cause  in  the  original  bill,  otherwise  it  would  be  demur- 
rable. It  must  state  the  parties  to  the  original  bill,  the  object 
and  prayer  of  the  bill,  and  the  several  proceedings  which  have 
been  had  thereon,  and  that  which  has  caused  its  abatement. 
It  must  also  state  the  interest  of  the  plaintiff  to  the  bill  of  re- 
vivor to  be  such  as  entitles  him  to  revive  the  cause.  It  should 
pray  that  the  original  suit  be  revived,  and  generally  for  an 
answer  of  the  defendants  to  the  bill  and  for  a  subpoena  requir- 
ing the  defendants  to  answer.^ 

§  278.  Distinction  between  the  Mil  of  revivor  and  a  bill 
in  the  nature  of  a  hill  of  revivor.— The  distinction  between 
a  bill  of  revivor  and  a  bill  in  the  nature  of  a  bill  of  revivor  has 
already  been  foreshadowed,  and  is,  perhaps,  clearly  understood 
from  what  has  been  said  in  the  preceding  section.  It  consists 
in  the  manner  of  obtaining  the  interest  in  the  subject-matter 
of  the  litigation. 

The  pure  bill  of  revivor  in  case  of  the  death  of  a  party  is 
founded  upon  mere  privity  of  blood  or  representation  and  by 
operation  of  law;  that  is  to  say,  the  suit  is  revived  in  the  name 
of  the  heirs  or  legal  representatives  of  the  deceased,  who,  by 
reason  of  such  legal  representation,  are  entitled  to  continue  the 
interests  of  the  deceased  in  the  action  already  commenced  and 
in  progress.  On  the  other  hand,  in  the  case  of  an  original  bill 
in  the  nature  of  a  bill  of  revivor,  the  right  rests  upon  privity 
of  estate  or  title  obtained  by  the  act  of  the  party  himself  and 
involves  more  than  the  mere  matter  of  right  of  representation ; 
it  involves,  as  well,  the  title  which  has  been  devised  or  other- 
wise obtained  —  in  other  words,  the  whole  question  by  which 
the  privity  of  estate  or  title  is  created  is  to  be  determined ;  the 

1  In  Cooper's  Eq.  PI.  70,  it  is  said  parties  to  the  original  bill  as  at 
that  a  bill  of  revivor  "must  state  the  time  the  abatement  happened; 
the  original  bill,  or  rather  veho  were  and  it  must  pray  that  the  suit  be 
the  plaintiffs  and  defendants  to  it,  revived  accordingly.  It  may  be  like- 
and  what  its  prayer  or  object  was,  wise  necessary  to  pray  that  the  de- 
and  the  several  proceedings  thereon  fendant  may  answer  the  bill  of  re- 
and  the  abatement.  It  is,  then,  nee-  vivor,  as  in  the  case  of  an  admission 
essary  to  state  so  much  new  matter,  of  assets  or  account  of  the  personal 
and  no  more,  as  is  requisite  to  show  estate  being  requisite  from  the  rep- 
how  the  plaintiff  becomes  entitled  resentative  of  a  deceased  party." 
to  revive,  and  charge  that  the  cause  Douglass  v.  Sherman,  2  Paige  Ch. 
ought  to  be  revived  and  stand  in  the  (N.  Y.)  358. 
same  condition  with  respect  to  the 


372 


AMENDMENTS,  SUPPLEMENTAL   PLEADINGS,  ETO.         [§  278. 


6ill  is  therefore  original  so  far  as  there  is  wanting  a  privity  of 
title  between  the  party  to  the  original  bill  and  tiie  party  to  the 
bill  of  revivor,  but  the  same  interest  is  claimed  which,  if  the 
title  to  that  interest  be  sustained,  will  give  to  the  party  the 
right  to  continue  the  original  suit  by  a  bill  of  revivor.  And  so 
when  the  title  transmitted  or  conveyed  is  proven  to  exist,  the 
party  to  the  bill  of  revivor  will  come  into  the  proceedings  with 
the  same  advantages  as  though  there  had  been  privity  between 
himself  and  the  party  to  the  original  bill,  and  the  suit  will  be 
considered  as  pending  from  the  filing  of  the  original  bill;  he 
may  compel  the  defendant  to  answer,  if  he  has  not  already 
answered,  and  have  every  advantage  that  he  would  have  had 
had  he  been  a  party  to  the  original  bill.'     And  so  it  follows 


» Story,  Eq.  PL.  sec.  280.  In  Slack 
et  al,  V.  Walcott,  3  Mason  (U.  S.),  508, 
510,  the  court  say:  "The  general  rule 
i«  that  no  person  can  revive  a  suit 
abated  by  the  death  of  a  party,  un- 
less he  is  in  by  privity  with  the  de- 
ceased. But  it  is  not  sufficient  that 
he  may  in  a  legal  sense  be  a  privy 
in  estate;  he  must  be  a  privy  in  rep- 
resentation. Lord  CoUe,  in  1  Inst. 
271,  says  there  are  four  sorts  of  priv- 
ies, viz.:  privies  in  estate,  as  donor 
and  donee,  lessor  and  lessee;  privies 
in  blood,  as  luir  and  ancestor:  priv- 
ies in  representation,  as  executors 
and  administrators;  and  privies  in 
tenure,  as  lord  and  tenant;  which 
are  all  r-ducible  to  two  heads:  priv- 
ies in  law  and  privies  in  deed.  Now 
the  right  to  revive  is  not  applicable 
to  all  these  different  sorts  of  privies; 
but  by  the  authorities  is  expressly 
confined  to  persons  who  are  in  priv- 
ity by  representation,  such  as  heirs 
in  relation  to  the  real  estate,  and  ex- 
ecutors and  administrators  in  rela- 
tion to  the  personalty.  There  is, 
indeed,  the  case  of  Dunn  v.  Allen  (2 
Vern.  426),  in  which  it  is  supposed 
that  Sir  John  Trevor,  the  master  of 
the  rolls,  permitted  a  purchaser  to 
maintain  a  bill  of  revivor.  If  this 
decision  be  correctly  reported,  it  is 


inconsistent  with  the  current  of  au- 
thority, and  must  be  deemed  to  have 
been  repudiated.  It  has  been  often 
determined  that  purchasers,  assign- 
ees, devisees,  and  other  persons  com- 
ing in  privity  of  estate,  but  not  of 
representation,  are  not  competent 
to  bring  a  bill  of  revivor.  But  in 
such  cases  they  are  not  without  rem- 
edy to  obtain  the  benefit  of  the  for- 
mer proceedings;  for  by  an  original 
bill  in  the  nature  of  a  bill  of  re- 
vivor, they  may  draw  to  themselves 
the  advantages  of  the  former  suit, 
in  whatever  stage  it  may  be  at  the 
time  of  the  abatement;  and  if  that 
happens  before  a  decree,  they  may 
carry  on  the  suit  to  a  final  decision. 
It  has  been  intimated  in  the  argu- 
ment at  the  bar  that  such  an  origi- 
nal bill  lies  only  where  there  has 
been  a  decree;  but  this  is  founded 
in  a  mistake.  That  it  lies  in  all 
stages  of  the  proceedings  is  clearly 
laid  down  by  Lord  Redesdale,  in  his 
excellent  treatise  on  Pleadings  in 
Chancery  (pp.  66,  88).  The  same  doc- 
trine is  recognized  by  Lord  Hard- 
wicke  in  an  anonymous  case  in  1  Atk. 
R  88,  371.  and  was  acted  on  in  Har- 
rison v.  Ridley,  2  Comyn's  R  589,  and 
Huet  V.  Lord  Say  and  Seale  (Select 
Cas.   Ch.   53).      In  short,  privies  in 


§  279.]         AMENDMENTS,  SUPPLEMENTAL    PLEADINGS,  ETC.  3Y3 

that  where  there  has  been  a  transmission  of  the  interest  of  the 
deceased  party  by  devise,  purchase,  or  otherwise,  or  where 
there  are  other  facts  which  may  be  brought  into  the  litigation 
beside  the  mere  identity  of  the  person  seeking  to  revive  the 
action,  it  is  necessary  to  file  an  original  bill  in  the  nature  of  a 

bill  of  revivor. 

Where  the  plaintiff  in  an  equity  suit  brought  to  set  aside 
the  conveyance  of  land  died  leaving  a  will  devising  the  land 
in  controversy,  and  the  devisee  sought  to  revive  the  original 
suit,  the  court  say:  "He  can  only  do  it  in  that  mode  which 
will  ^ive  the  heirs  at  law  of  his  testator  an  opportunity  to  dis- 
pute °the  validity  of  the  will.  This  cannot  be  effected  by  a 
simple  bill  of  revivor,  for  the  inquiry  there  is  limited  to  the 
ascertainment  of  the  person  upon  whom  the  law  casts  the  in- 
heritance on  the  death  of  the  ancestor.  In  order,  therefore,  to 
bring  those  facts  before  the  court  which  are  necessary  to  afford 
an  opportunity  to  dispute  the  title  of  the  devisee,  an  original 
bill  in  the  nature  of  a  bill  of  revivor  is  held  to  be  the  appro- 
priate process."  '  The  same  rule  would  obtain  if  the  party 
had  been  a  purchaser  instead  of  a  devisee  of  the  deceased 

plaintiff. 

§  279.  The  form  of  the  bill  in  the  nature  of  a  hill  ot  re- 
vivor.—An   original   bill  in  the  nature  of  a  bill  of  revivor 
should  generally  state  the  same  facts  as  are  stated  in  a  bill  of 
revivor,  but  to  these  facts  must  be  added  the  allegations  nec- 
essary to  put  in  issue  the  validity  of  the  interest  claimed  by 
the  party  seeking  to  revive  the  suit,  and  the  legality  of  the 
transmission  of  that  title  from  the  deceased  party  in  the  orig- 
inal case;  as,  for  example,  in  the  case  mentioned  in  the  preced- 
ing section,  if  the  complainant  in  the  original  suit  was  seeking 
to  set  aside  a  conveyance  of  land  and  died  leaving  a  will  de- 
vising the  lands,  and  the  devisee  seeks  to  revive  the  original  suit, 
he  must  allege,  in  addition  to  the  usual  facts,  allegations  show- 
ing the  obtaining  of  the  title  to  the  lands  in  question  and  the 
validity  of  the  will,  so  that  the  parties  to  the  original  suit,  or 
the  heirs  at  law,  may  have  an  opportunity  to  dispute  these 

estate   by  deed  are  entitled  to  the    bill  of  revivor,  as  privies  in  law  are 
same  benefit  of  the  proceedings  upon    upon  a  bill  of  revivor." 
an  original  bill  in  the  nature  of  a        i  Lyons  v.  Van  Riper,  26  N.  J.  t>q. 

337,  338;  Story,  Eq.  PL  377,  378. 


^74:  AMENDMENTS,  SUPPLEMENTAL    PLEADINGS,  ETC.         [%  280. 

facts  and  litigate  and  settle  them;  for  until  he  has  shown  his 
title  he  cannot  be  said  to  be  in  privity  with  the  complainant 
in  the  original  suit,  and  therefore  it  will  not  be  revived  in  his 
interest.  This  bill  should  also  pray  for  a  revival  of  the  case 
and  that  the  plaintiff  have  the  benefit  of  the  former  proceed- 
ings thereon. 

§  280.  Bills  of  revivor  and  supplement. —  A  third  class  of 
bills  in  the  nature  of  a  bill  of  revivor  is  bills  of  revivor  and 
supplement.  These  bills  in  their  nature  are  both  bills  of  re- 
vivor and  supplemental  bills,  and  the  rules  governing  each 
obtain  in  their  use  and  application;  as,  for  example,  where  the 
suit  has  not  only  abated  by  the  death  of  the  plaintiff  or  for 
some  reason  that  calls  for  a  bill  of  revivor,  but  since  the  filinsr 
of  the  original  bill  events  have  occurred  which  afifect  the  case 
made  by  the  original  bill  and  which  are  necessary  to  be  stated 
to  the  court  either  to  show  the  rights  of  the  parties  or  to  obtain 
the  full  benefits  of  the  suit. 

In  Pendleton  v.  Fay"^  the  chancellor  in  his  opinion  said: 
"Where  a  suit  abates  so  that  the  complainant  is  obliged  to  file 
a  bill  of  revivor,  he  may  file  such  bill  of  course,  without  any 
special  order  of  the  court  granting  permission  for  that  pur- 
pose. If  the  bill  is  unnecessarily  or  improperly  filed,  the  de- 
fendant may  avail  himself  of  the  objection  by  plea  or  demur- 
rer.^ But  where  a  complainant  has  a  right  to  revive,  he  may 
add  to  the  bill  such  supplemental  matter  as  may  be  proper  to 
add  merely  by  way  of  supplement  in  that  stage  of  the  suit. 
But  if  the  matter  added  by  way  of  supplement  to  a  bill  of  re- 
vivor be  irrelevant  or  improper,  the  defendant  may  always 
avail  himself  of  the  objection,  either  by  a  plea,  or  by  demur- 
rer, or  by  exceptions  for  impertinence.  If  no  decree  had  been 
made  in  this  case,  or  if  the  supplemental  matter  had  arisen 
since  the  decree,  it  would  be  a  matter  of  course  to  permit  the 
complainants  to  file  their  bill  of  revivor  and  supplement,  leav- 
ing the  defendant  to  make  his  objection,  in  the  usual  mode,  to 
the  whole  or  any  part  of  the  bill."'  But  it  has  been  held  that 
such  supplemental  matter  cannot  be  introduced  where  the  origi- 
nal bill  does  not  show  a  good  cause  of  action  for  the  complainant. 

1 3  Paige  Ch.  (N.  Y.)  204,  206.  Pelletreau  v.  Rathbone,  1  N.  J.  Eq. 

*  Lewis  V.  Bridgman,  2  Sim.  465.        (Sax.)  331;  Spier,  Kinnicutt  et  al.  v. 
•Bampton  v.  Birchall,  5  Beav.  330;     Robinson,  9  How.  Pr.  (N.  Y.)  325. 


§  281.]         AMENDMENTS,  SUPPLEMENTAL   PLEADINGS,  ETC. 


'lO 


In  Eastman  v.  Batchelder^  it  was  held  that  "new  rnatter 
may  be  introduced  into  a  bill  of  revivor  and  supplement,  so 
that  defect  in  the  original  bill,  arising  from  subsequent  events, 
may  be  supplied.'^  But  this  cannot  be  done  with  any  effect 
where  there  is  nothing  in  the  original  bill  by  which  it  may  be 
sustained.  The  original  bill  must  show  a  case  for  the  com- 
plainant, otherwise  the  new  matter  would  be  a  new  cause  in 

court." ' 

Defenses. 

§  281,  Defenses  to  the  several  bills  of  revivor. —  It  may 

be  stated  as  a  general  rule  that  the  defenses  to  the  several  bills 
of  revivor  may  be  interposed  by  demurrer,  plea  or  answer,  as 

litigated.  If  the  only  object  of  this 
application  were  to  revive  this  suit 
by  a  supplemental  bill  in  the  nature 
of  a  bill  of  revivor,  there  would  be 
no  difficulty.  But  leave  is  asked, 
not  simply  to  revive  the  suit,  but 
likewise  to  introduce  matters,  not 
essential  for  the  purpose  of  revival, 
by  the  same  supplemental  bill. 
There  are  two  classes  of  ca.ses  in 
which  it  is  proper  to  proceed  by  sup- 
plemental bill:  First,  where  new 
matter  affecting  the  case  has  arisen 
since  the  filing  of  the  original  bill, 
and,  secondly,  where  such  matter 
existed  previous  to  the  filing  of  the 
bill,  but  not  having  come  to  the 
knowledge  of  the  party  until  the 
cause  hsis  come  to  an  issue,  it  is,  con- 
sequently, too  late  to  introduce  it  by 
amendment.  Undoubtedly,  where 
a  party  has  leave  to  file  an  ordinary 
supplemental  bill,  he  may  avail  him- 
self of  any  matter  which  is  the  ap- 
propriate subject  of  such  a  bill.  If 
the  suit  were  already  revived,  the 
party  could  avail  himself  of  the  new 
matter  in  this  form,  and  the  ques- 
tion here  is,  whether  he  cannot  do  so 
by  the  same  supplemental  bill  by 
which  he  revives  the  suit  To  pre- 
vent the  inconvenience  of  another 
bill,  we  think  it  may  be  done." 
Douglas  V.  Sherman,  2  Paige  Ch. 
358. 


1 36  N.  H.  141,  154. 

^Westcott  V.  Cady,  5  Johns.  Ch. 
334;  Pendleton  v.  Fay,  3  Paige  Ch. 
204. 

3  3  Danl.  Ch.  PI.  &  Pr.  1722.  In  Ala- 
bama it  has  been  held  that  "the sup- 
plemental matter  must  have  been 
newly  discovered  and  verified  by 
affidavit,  and  may  be  demurred  to 
by  the  defendant."  Bowie  v.  Min- 
ter,  2  Ala.  406;  Quackenbush  v.  Leon- 
ard, 10  Paige  Ch.  131;  Merre wether 
v.  Hellish,  13  Vea  Jr.  161.  In  Har- 
rington V.  Becker,  2  Barb.  Ch.  75,  it 
was  held  that  where  a  third  party 
subsequently  acquired  the  interest 
of  a  deceased  defendant  in  the  orig- 
inal suit  by  purchase  from  his  heirs 
before  the  suit  was  revived  against 
such  heirs,  the  suit  might  be  re- 
vived by  bill  of  revivor  and  sup- 
plement against  the  purchaser.  In 
Manchester  v.  Mathewson,  2  R.  L 
416,  418,  the  court  say:  "  And,  gener- 
ally, when,  by  the  death  of  a  party, 
the  suit  abates,  and  his  interest  in 
the  property  in  controversy  is  trans- 
mitted by  a  devise,  or  in  any  other 
manner,  so  that  the  title  as  well  as 
the  person  entitled  may  be  ques- 
tioned, the  suit  cannot  be  continued 
by  a  bill  of  revivor.  In  such  cases 
an  original  bill,  in  the  nature  of  a 
bill  of  revivor  and  supplement,  must 
be  filed,  in  which  the  title  may  be 


376  AMENDMENTS,  SUPPLEMENTAL    PLEADINGS,  ETC.         [§  281. 

the  nature  of  the  case  may  require.  In  interposing  these  sev- 
eral defenses  the  general  rule  applicable  to  each  obtains  —  that 
is  to  say,  if  the  bill  upon  its  face  does  not  show  a  sulRcient 
ground  for  reviving  the  suit,  or  any  part  of  it, —  if  it  is  so  de- 
fective that  admitting  all  the  facts  alleged  in  the  bill  to  be 
true  it  could  not  be  sustained,  a  demurrer  would  be  proper. 
The  demurrer  may  be  interposed  for  defects  appearing  upon 
the  face  of  the  bill  either  in  substance  or  imperfections  in  the 
frame  of  the  bill.  And  it  has  been  said  that  a  demurrer  may 
be  interposed  "(1)  either  for  want  of  privity,  or  \^)  for  want 
of  sullicient  interest  in  the  party  seeking  to  revive,  or  (3)  for 
some  imperfection  in  the  frame  of  the  bill."  *  A  demurrer  to 
a  bill  of  revivor,  however,  does  not  involve  the  sufficiency  of 
the  original  bill;  but  it  has  been  held  in  the  federal  courts  that 
if  the  original  bill  fails  to  state  facts  sufficient  to  give  the  fed- 
eral court  jurisdiction,  that  question  may  be  raised  by  demur- 
rer, the  doctrine  being  that  where  the  court  possessed  no  juris- 
diction of  the  original  suit  there  is  nothing  to  revive;  this 
doctrine,  however,  could  not  be  applied  unless  upon  the  face 
of  the  original  bill  it  appeared  that  there  was  absolute  want 
of  jurisdiction  either  of  parties  or  subject-matter. 

The  question  was  discussed  by  i\Ir.  Justice  Field  in  Sharon 
V.  Terry  -  in  the  following  language:  "The  general  doctrine  is 
that  objections  taken  to  the  original  bill,  or  which  might  have 
been  thus  taken,  cannot  again  be  made  upon  a  bill  of  revivor 
where  the  original  suit  has  abated  by  the  death  of  the  plaint- 
iff. The  only  questions  which  can  then  be  raised  are  whether 
the  party  in  whose  name  the  revival  is  asked  has  succeeded  to 
the  interests,  rights  or  claims  of  the  deceased,  or  has  become 
the  legal  representative  of  his  estate,  so  as  to  enable  him  to 
continue  the  prosecution  of  the  suit,  if  not  already  determined, 
or  to  revive  it  so  as  to  enforce  the  judgment  rendered,  if  not 
already  executed.  If  the  suit  be  pending,  undetermined,  ques- 
tions previously  decided  cannot  be  again  raised  and  reconsid- 
ered, any  more  than  they  could  if  the  plaintiff  had  not  died; 
and,  if  the  suit  has  gone  to  final  judgment,  objections  which 
might  have  controlled  it,  if  presented  in  time,  cannot  be  after- 
wards urged  against  its  validity,  any  more  than  they  could  by 

J  Story,  Eq.  PL,  sees,  617,  632.  2  36  Fed.  337,  346. 


§  281.]         AMENDMENTS,  SUPPLEMENTAL   PLEADINGS,  ETC.  377 

a  Stranger  to  the  record.  An  attack  upon  a  judgment  in  a 
proceeding  to  revive  it  is  a  collateral  attack,  and  can  avail  only 
when  there  is  an  absolute  want  of  jurisdiction,  either  of  the 
parties  or  bf  the  subject-matter." 

If  the  bill  be  one  of  revivor  and  supplement,  the  improper 
insertion  of  the  supplemental  matter  m  the  bill  would  not 
authorize  the  defendant  to  demur  to  the  whole  bill;  in  such 
case  he  should  demur  to  the  supplemental  matter  only.^ 

We  have  already  seen  that  the  bill  of  revivor  must  show  a 
sufficient  interest  in  the  person  in   whose  name  the   suit   is 
sought  to  be  continued;  and  so  where  such   interest  is   not 
shown,  or  if  it  appears  that  the  suit  is  not  entitled  to  be  re- 
vived, the  bill  will  be  demurrable.     A  demurrer  is  the  proper 
pleading  to  be  interposed  where  there  are  imperfections  in  the 
frame  of  the  bill;  as,  for  example,  if  the  parties  to  the  bill  of 
revivor  are  not  proper  parties,  it  is  demurrable;  or  where  the 
representative  of  a  deceased  tenant  seeks  to  revive  a  suit  and 
fails  to  make  the  surviving  tenants  in  common  parties  to  the 
bill,  the  bill  would  be  demurrable;  or,  if  it  should  appear  upon 
the  face  of  the  bill  that  the  entire  object  and  purpose  of  the 
original  bill  had  been  accomplished  and  no  further  relief  could 
be  granted  if  the  suit  were  revived,  the  bill  would  be  demur- 
rable.    And  it  has  been  said  that  it  is  necessary  the  bill  of  re- 
vivor should  set  forth  sufficient  of  the  original  bill  to  show 
that  the  plaintiff  has  a  right  to  revive  the  suit,  and  that  the  per- 
sons who  are  made  parties  are  proper  parties  to  the  bill.     If 
the  bill  fails  to  do  this,  objections  to  revive  the  suit  may  be 
taken  by  demurrer. 

1  Randolph   v.  Dickerson,  5  Paige  or  a  purchaser,  or  a  devisee  of  the 

Ch.  517.    In  Owen  v.  Curzon,  2  Vern.  estate  in  question,  a  demurrer  would 

237,  where  an  administrator  had  ob-  lie  for  the  want  of  the  proper  right 

tained  a  decree  in  the  original  suit  of   representation    in  such  a  bill." 

but   before  enrollment  died,  a  de-  Story,  Eq.  PI.,  sec.  619,  citing  Coop, 

murrer  to  the  bill  of  revivor  filed  by  Eq.  PI.  211.      In   Bettes  v.   Dana,   2 

an  administrator  de  bonis  non  was  Sumn.  (U.  S.)  383,  385,  the  court  said: 

sustained  on  the  ground  that  he  was  "Nothing  can  be   more  clear  than 

not  in  privity  with  the  deceased  ad-  that,  upon  a  bill  to  revive,  the  sole 

ministrator   who    obtained   the   de-  questions  before  the   court  are  the 

cree.     "So,  if  a  bill  of  revivor  should  competency  of  the  parties  and  the 

be  tiled  by  or  against  the  assignees  correctness  of  the  frame  of  the  bill 

of  a  banUrupt,   or  an   insolvent,  or  to  revive." 
4he  committee  of  a  lunatic's  estate. 


378  AMENDMENTS,  SUPPLEMENTAL    PLEADINGS,  ETC.         [§  281. 

By  2>^<^i-  1'he  same  general  rules  that  govern  pleas  in 
equity,  and  which  have  already  been  discussed,  obtain  in  cases 
of  pleas  to  bills  of  revivor.  If  the  defect  sought  to  be  taken 
advantage  of  does  not  appear  upon  the  face  of  the  bill,  but  iiiay 
be  shown  to  exist  by  other  evidence,  such  defect  or  insufficiency 
may  be  taken  advantage  of  by  plea,  and  any  of  the  several  rea- 
sons for  pleading  to  a  bill  in  chancery  apply  to  a  case  of  a  bill 
of  revivor.'  As,  for  example,  if  the  complainant  is  not  entitled 
to  revive  the  suit  at  all,  but  such  objection  does  not  appear 
upon  the  face  of  the  bill  so  as  to  entitle  the  defendant  to  demur, 
it  may  be  taken  advantage  of  by  plea;  as  where  the  complain- 
ant is  not  in  fact  a  personal  representative  of  the  deceased,  but 
upon  the  face  of  the  bill  of  revivor  his  title  is  so  stated,  the  de- 
fendant may  raise  the  question  by  plea  and  show  by  proper 
evidence  that  he  is  not  such  personal  representative.  And  so 
where  defendant  exhibited  a  bill  of  revivor  for  the  purpose  of 
appealing  from  the  decree,  it  was  held  that  the  objection  of 
lapse  of  time  was  matter  of  limitation  and  must  be  pleaded 
even  though  it  appears  of  record.-  But  it  has  been  held  that 
the  defendant  to  a  bill  of  revivor  cannot  support  a  plea  as  a 
defense  which  has  already  been  pleaded  by  the  original  de- 
fendant and  overruled. 

By  answer.  It  is  generally  stated  that  one  of  the  formal  de- 
fenses to  a  bill  of  revivor  is  by  answer,  and  yet,  if  it  be  a  pure 
bill  of  revivor,  the  only  adequate  and  pertinent  defense  would 
be  by  demurrer  or  plea,  for  the  question  to  be  determined  is 
merely  the  right  of  the  complainant  to  have  the  suit  revived, 
and  if  the  bill  merely  prays  for  a  revival  of  the  suit,  a  hearing 
would  be  unnecessary;  but  when  the  bill  prays  for  an  answer, 
an  answer  may  be  filed  contesting  the  right  to  revive,  and  the 
cause  will  proceed  upon  the  bill  of  revivor  the  same  as  upon 
other  bills,  and  the  law  and  facts  will  be  determined  as  usual 
at  the  hearing,  when  the  complainant  must  establish  his  right 
to  revive  or  his  suit  will  fail.'     If  the  bill,  however,  be  an  orig- 

1  Pendleton  V.  Fay,  3  Paige,  204.  cussed,  and  the  court  said:     "The 

'Peer  v.  Cookerow,  13  N.  J.  Eq.  36.  putting  in  of  an  answer  to  a  bill  of 

*2  Barb.  Ch.  Pr.  (2d  Rev.  ed.),  top  revivor  is  a  suflScient  submission  to 

paging  57.     In  Codrington  v.  Houl-  have  the  suit  revived,  and,  notwith- 

ditch,  5  Sim.  886,  the  matter  of  an-  standing  anything  that  may  be  con- 

swering  a   bill   of  revivor  was  dis-  tained  in  the  answer,  it  is  a  matter 


§  281.]        AMENDMENTS,  SUPPLEMENTAL   PLEADINGS,  ETC.  379 

inal  bill  in  the  nature  of  a  bill  of  revivor,  or  an  original  bill  in 
the  nature  of  a  supplemental  bill,  generally  termed  "  a  bill  of 
revivor  and  supplement,"  it  would  seem  that  the  office  of  the 
answer  is  more  material  to  the  defense. 

If  the  bill  be  an  original  bill  in  the  nature  of  a  revivor, 
while  the  former  defendant  is  absolutely  bound  by  the  pro- 
ceedings in  the  original  suit,  still  if  there  has  been  new  matter 
added  to  the  controversy  upon  which  issue  may  be  joined  — 
that  is  to  say,  the  title  or  interest  claimed  to  have  been  ob- 
tained by  the  new  party  to  the  litigation  as  well  as  the  trans- 
mission of  the  title,—  the  question  of  transmission  of  title  and 
the  legality  of  the  parties'  rights  and  interests  may  be  dis- 
puted by  the  answer  to  the  bill,  for  this  issue  must  be  tried 
and  determined  in  order  to  settle  the  right  of  the  person  to 
revive  the  suit  in  his  behalf. 

Perhaps  a  greater  necessity  exists  in  the  case  of  a  bill  of  re- 
vivor and  supplement,  where  new  matter  based  upon  facts  and 
circumstances  which  have  occurred  since  the  filing  of  the 
original  bill  are  put  in  issue,  and  may,  indeed,  involve  the 
bringing  in  of  new  parties.  The  defendants  to  such  a  bill 
may,  by  answer,  contest  the  questions  of  fact  thus  raised  by  the 
new  bill,  and  if  a  new  party  is  thus  brought  into  the  contro- 
versy it  is  his  only  opportunity  to  defend  his  rights  and  inter- 
ests, for  as  to  him  the  bill  is  an  original  bill. 

In  Fulton  V.  Greacen^  the  court  say:  "The  difference  be- 
tween an  original  bill  in  the  nature  of  a  bill  of  revivor  and  an 
original  bill  in  the  nature  of  a  supplemental  bill  is  defined  by 
Lord  Redesdale  as  follows:  '  There  seems  to  be  this  difference 
between  an  original  bill  in  the  nature  of  a  bill  of  revivor  and 
an  original  bill  in  the  nature  of  a  supplemental  bill:  upon  the 
first,  the  benefit  of  the  former  proceedings  is  absolutely  ob- 
tained, so  that  the  pleadings  in  the  first  cause  and  the  deposi- 
tions of  witnesses,  if  any  have  been  taken,  may  be  used  in  the 
same  manner  as  if  filed  or  taken  in  the  second  cause,  and  if 

of  course  to  draw  up  the  order  to  therefore,  is  that  the  motion  to  dis- 

revive.     Any  set  of  circumstances  charge  the  order  to  revive  is  wrong, 

that  might  form  a  reason  why  the  and  that  it  ought  to  be  refused  with 

suit  should   not  be   revived    might  costs." 

and  ought  to  have  been  brought  for-  ^44  N.  J.  Eq.  443,  447. 

ward  by  way  of  plea.     My  opinion, 


380  AMENDMENTS,  SDPrLEMENTAL    PLEADINGS,  KTO.         [§  281. 

any  decree  has  been  made  in  the  first  cause  the  same  decree 
shall  be  made  in  the  second.  15ut  in  the  other  a  new  defense 
may  be  made;  the  pleadings  and  depositions  cannot  be  used  in 
the  same  manner  as  if  taken  or  filed  in  the  same  cause;  and 
the  decree,  if  any  has  been  obtained,  is  in  no  otherwise  of 
advantage  than  as  it  may  be  an  inducement  to  the  court  to 
make  a  similar  decree.'  "  * 

It  will  be  observed  that  Lord  Kedesdale  docs  not  say  that, 
under  an  original  bill  in  the  nature  of  a  supplemental  bill,  the 
pleadings  and  depositions  filed  and  taken  in  the  original  cause 
cannot  bo  used  in  the  second  cause  at  all,  but  simply  that  they 
cannot  be  used  in  tlie  same  manner  as  they  may  under  an 
original  bill  in  the  nature  of  a  bill  of  revivor. 

Lord  Eldon,  in  Lloyd  v.  Johnes^-  stated  it  as  his  opinion  that 
the  only  real  distinction  which  exists  between  the  rights  or 
positions  of  the  parties  under  the  two  different  forms  of  plead- 
ing is,  that  the  defendant,  under  an  original  bill  in  the  nature 
of  a  supplemental  bill,  is  just  as  much  bound  by  the  former 
proceedings  as  under  an  original  bill  in  the  nature  of  a  bill  of 
revivor,  except  as  to  any  new  equity  or  defen.^o  which  may 
have  arisen  since  the  original  bill  was  filed,  or  which  he  may 
have  a  right  to  urge  against  the  new  party  coming  into  the 
litigation,  but  which  did  not  exist  against  the  original  com- 
plainant. Making  this  addition  to  the  formula  given  by  Lord 
Redesdale,  it  will  be  perceived  that  the  rule  on  this  subject  is 
made  entirely  plain,  easy  of  application  and  eminently  just  in 
its  operation. 

Adopting  this  as  the  true  ground  of  distinction  between  the 
two  forms  of  pleading,  it  seems  quite  manifest  that  the  new 
party  coming  into  the  litigation  should  be  required  to  adopt 
that  form  of  pleading  which  will  leave  open  to  the  defendant 
any  defense  which  may  have  arisen  since  the  suit  was  com- 
menced, or  which  he  may  have  a  right  to  urge  against  the 
new  party,  although  it  did  not  exist  against  the  old.  In  no 
other  way  can  the  rights  of  the  present  litigants  be  fairly  de- 
termined, or  full  and  complete  justice  be  done. 

The  procedure  upon  the  several  bills  of  revivor  in  the  fed- 

1  Mitf.  Eq.  PL  68;  Story,  Eq.  Pi.  349,  note  3.  »9  Ves.  Jr.  37. 


§  281.]         AMENDMENTS,  SUPPLEMENTAL    PLEADINGS,  ETC.  381 

eral  court  is  provided  by  rule.'     The  answer  should  be  signed 
by  the  counselor  and  filed  the  same  as  other  answers. 

The  replication.  The  office  of  a  replication,  where  demanded 
by  the  pleadings  interposed  by  the  defendant  in  this  class  of 
cases,  is  the  same  as  that  already  discussed,  except  that  it  has 
been  held  to  be  necessary  only  where  the  abatement  has  oc- 
curred after  a  decree,  or  after  issue  joined  in  the  original  cause. 
If  the  bill  of  revivor  is  filed  before  the  decree,  or  before  issue 
joined  in  the  original  cause,  a  separate  replication  will  not  be 
necessary.^ 

The  hearing.  If  the  object  of  the  bill  is  completely  effected 
by  the  order  of  revivor,  there  is  no  necessity  for  bringing  the 
bill  to  a  hearing;'  but  if  the  bill  calls  for  an  answer,  and  bv 
the  answer  the  right  of  the  plaintiff  to  revive  is  denied,  it  will 
be  necessary  to  set  the  case  made  by  this  issue  for  hearing  not- 
withstanding the  order  of  revivor  has  been  obtained.*  And 
so  if  the  bill  be  one  in  the  nature  of  a  bill  of  revivor,  or  a  bill 
of  revivor  in  the  nature  of  a  supplemental  bill,  and  the  new 
matter  is  controverted  by  the  answer,  it  will  be  necessary  to 
set  the  case  down  for  hearing.  When  the  case  is  set  for  hear- 
ing, as  above  stated,  the  cause  should  proceed  in  the  same 
manner  as  upon  other  bills,  and  the  matters  of  fact  and  law 
ascertained  and  determined. 

1 U.  a  Eq.  Rules  39,  59.  '2  Barb.  Ch.  Pr.  56. 

2  2  Barb.  Ch.  Pr.  55;    3  DanL  PI.  &  <  Harris  v.  Pollard,  3  Peere  Wms. 

Pr.  (2d  Am.  ed.)  712;  Catton  v.  Car-  84a 
lisle,  5  Madd.  25a 


CHAPTER  XL 


INTERLOCUTORY  APPLICATIONS  AND  PROCEEDINGS. 


g  282.  Interlocutory  applicationa. 


283, 

284, 


286. 
287, 


Motions. 


Nature  and  kinds  of  motions. 

(1)  Ex  parte  motions. 

(2)  Special   motions  upon  no- 
tice to  the  opposite  party. 

"Who  may  make  motions. 
Service  and   proof  of  service 

of   motion    and    notice    of 

hearing. 
288.  The  hearing  of  motions. 


Petitions. 
§  289.  Proceeding  by  petition. 

290.  Form  of  the  petition. 

291.  Serving  the  petition  and  notice 

and  tiling  the  same. 

292.  The   proofs   upon    which   the 

petition  is  to  be  heard  and 
the  hearing. 

293.  The  use  of  petitions. 

294.  Intervention  —  Who  may  in- 

tervene. 

295.  The  petition  for  intervention. 

296.  Defenses  to  petitions  for  inter- 

vention. 


§282.  Interlocutory  applications. —  An  interlocutory  ap- 
plication is  one  made  by  motion  or  petition  for  an  order  of  the 
court  as  to  matters  arising  in  the  course  of  the  cause.  "  It  may 
either  relate  to  the  process  of  the  court  or  to  the  protection  of 
the  property  in  Vitigsiiion  pe7idente  lite,  or  to  any  other  matter 
upon  which  the  interference  of  the  court  is  required  at  the 
time."  ^  If  the  application  be  made  orally  it  is  called  a  motion ; 
if  in  writing,  a  petition. 

While  there  are  certain  applications  that  may  be  made 
orally,  as  for  the  filing  of  bills,  pleas,  demurrers  and  other 
pleadings,  and  certain  matters  for  which  orders  of  course  may 
be  entered,  it  may  be  said  to  be  a  general  rule  that  whenever 
the  application  involves  long  or  intricate  statements  of  fact 
necessary  to  be  heard  and  determined  by  the  court,  the  appli- 
cation should  be  made  by  petition  in  writing  setting  forth 
those  facts  which  must  be  sustained  by  proof.  These  applica- 
tions are  more  or  less  governed  by  the  rules  of  the  several 
courts.     It  is  provided  by  rule  of  the  supreme  court  of  the 


»2  Barb.  Ch.  Pr.  564;  2  DanL  Ch.  PI.  &  Pr.  (4th  ed.)  158a 


§  233.]       INTEELOOUTOKY    APPLICATIONS    AND    PROCEEDINGS.  383 

United  States  that  "  All  motions  hereafter  made  to  the  court 
shall  be  reduced  to  writing  and  shall  contain  a  brief  statement 
of  the  facts  and  objects  of  the  motion."^ 

Motions. 

§  283.  Nature  and  kinds  of  motions.— Motions  are  of  two 
kinds:  (a)  Motions  of  course,  and  (b)  special  motions.  These 
motions  may  be  made  by  or  on  behalf  of  parties  to  the  record 
if  they  are  not  in  contempt,  but  a  person  who  is  not  a  party 
to  the  record  will  not,  as  a  general  rule,  be  allowed  to  be  heard 
by  motion.  Some  exceptions,  however,  have  been  made,  as 
where  a  party  is  a  quasi-pdrty  to  the  record;  as,  for  example, 
a  creditor  or  a  purchaser  coming  in  under  a  decree.- 

(a)  A  'motion  of  course  is  one  which,  according  to  the  estab- 
lished rules  and  practice  of  the  court,  will  be  granted  upon  the 
mere  asking  for  it  and  without  any  special  hearing.  And  for 
this  reason  there  is  no  necessity  of  notice  to  the  opposite  party 
of  such  a  motion,  as  there  could  be  no  defense;  however,  if  an 
order  should  bo  entered  as  of  course  which  would  be  preju- 
dicial to  the  opposite  party,  or  obtained  by  a  false  statement 
or  suggestion  of  fact,  it  would  be  set  aside  upon  motion 
madeTor  that  purpose.  Upon  these  motions  the  order  is  usu- 
ally entered  by  the  register  or  clerk  at  the  request  of  the  party 
or  his  solicitor  and  without  application  to  the  court. 

(b)  A  special  motion  is  one  which  requires  some  proof  of 
facts  which  would  warrant  the  entering  of  the  order  prayed 
for.  These  facts  may  be  shown  by  the  pleadings  in  the  cause, 
by  affidavits  or  by  oral  testimony,  but  are  usually  shown  by 
affidavits  attached  to  the  motion  and  served  upon  the  opposite 
party  and  by  the  records  and  files  in  the  cause.^ 

1 U.  S.  Sup.  Ct.  Rule  6.  other  proceedings  in  the  clerk's  office 

2  By  United  States  Equity  Rule  5  which  do  not.  by  the  rules  herein- 

it  is  provided:  "All  motions  and  ap-  after  prescribed,  require  any  allow- 

plications  in  the  clerk's  office  for  the  ance  or  order  of  the  court  or  any 

issuing  of  mesne  process  and  final  judge    thereof,    shall    be     deemed 

process  to  enforce  and  execute  de-  motions  and  applications  grantable 

crees  for  filing  bills,  answers,  pleas,  of  course  by  the  clerk  of  the  court, 

demurrers  and  other  pleadings;  for  But  the  same  may  be  suspended,  or 

making    amendments    to  bills  and  altered,  or  rescinded  by  any  judge  of 

answers:   for  taking  bills  pro  con-  the  court  upon  special  cause  shown." 

fesso;  for  filing  exceptions;  and  for  3  United  States  Equity  Rule  6  pro- 


3S4  INTERLOODTORY    APPLICATIONS    AND    PROCEEDINGS.       [§  284. 

These  motions  may  be  divided  according  to  their  nature  and 
purpose  into  (1)  ex  parte  motions,  and  (2)  motions  upon  notice 
to  the  opposite  party. 

(1)  It  would  be  difficult  to  define  motions  that  may  be  made 
ex  parte,  or  to  distinguish  them  as  a  class  from  motions  that 
require  notice;  generally  where  the  order  sought  for  by  the 
motion  is  one  that  should  be  granted  by  reason  of  the  rules 
and  practice  of  the  court,  or  in  compliance  with  a  former  order 
in  the  cause,  the  motion  may  be  ex  parte. 

(2)  But  if  the  granting  of  the  order  does  not  rest  upon  a 
clearly  defined  rule  of  practice  and  is  not  regulated  by  a  pre- 
vious order,  the  motion  should  only  be  heard  upon  notice. 

§  2S4.  (1)  Ex  parte  motions. — It  would  be  difficult  to  enu- 
merate the  number  and  variety  of  cases  where  motions  ex  parte 
will  be  allowed.  They  are  numerous  and  often  very  impor- 
tant. Some  of  the  familiar  instances  are  for  obtaining  an  order 
jyro  confcHw  for  failure  of  defcndnnt  to  a]ipear  after  personal 
service  of  subpcrna;  to  obtain  an  order  of  pul)lication  for  the 
appearance  of  an  absent  or  concealed  defendant;  for  obtaining 
a  preliminary  writ  of  injunction  where  the  prevention  of  irre- 
parable injury  is  sought,  and  to  give  notice  of  the  application 
would  endanger  the  object  of  the  motion ;  for  an  order  to  show 
cause  why  an  injunction  should  not  be  issued;  for  an  order  to 
confirm  and  make  absolute  a  previous  order  nisi;'^  for  failure 

vides:  "All  motions  for  rules  or  party  shall  within  a  certain  time 
orders  and  other  proceedings,  which  sliow  cause  to  the  contrary  (which 
are  not  grantable  of  course  or  with-  order  is  generally  termed  an  order 
out  notice,  shall,  unless  a  different  nisi),  the  party  obtaining  the  order 
time  be  assigned  by  a  judge  of  the  must,  after  the  expiration  of  the 
court,  be  made  on  a  rule-day,  and  time  limited  by  the  order  nisi,  if  no 
entered  in  the  order-book,  and  shall  cause  is  shown,  move  for  another 
be  heard  at  the  rule-day  next  after  order  to  make  absolute  the  previous 
that  on  which  the  motion  is  made,  order  nisi.  The  motion,  in  this  case. 
And  if  the  adverse  party  or  his  solic-  requires  no  notice;  but  the  applica- 
itor  shall  not  then  appear,  or  shall  tion  must  be  supported  by  an  afiR- 
not  sliow  good  cause  against  the  davit  to  prove  the  due  service  of  the 
same,  the  motion  may  be  heard  by  order  nisi,  either  upon  the  party 
any  judge  of  the  court  eJ?parfe,  and  himself,  when  such  service  is  re- 
granted,  as  if  not  objected  to,  or  re-  quired  to  be  personal,  or  upon  his 
fused,  in  his  discretion."  solicitor  or  other  person,  w  here  per- 
12  Danl.  Cli.  P1.&  Pr.  1598.  "Where  sonai  service  is  not  required  or  has 
an  order  is  made  by  which  aparticu-  been  dispensed  with." 
lar  act  is  to  be  done,  unless  the  other 


§  285.]       INTERLOOUTOBY    APPLICATIONS    AND    PROCEEDINGS.  385 

of  the  opposite  party  to  perform  that  which  is  required  by  the 
order;  where  the  bill  has  been  taken  as  confessed;  for  want 
of  appearance;  an  application  for  a  receiver;  for  an  injunc- 
tion or  ne  exeat  against  the  defendant  under  certain  circum- 
stances. 

Amoncr  the  more  important  ex  parte  proceedings  is  perhaps 
that  of  uranting  an  application  for  a  receiver,  or  a  preliminary 
writ  o^injunction,  for  where  equity  and  good  conscience  de- 
mand the  immediate  protection  of  property  from  destruction 
or  injury  and  to  give  notice  to  the  defendant  of  the  intention 
to  make  the  application  would  be  productive  of  the  mischief 
apprehended,  or  induce  him  to  accelerate  the  act  and  thus 
defeat  the  object  of  the  injunction,  the  courts  will,  without 
notice  and  before  the  service  of  a  copy  of  the  bill,  grant  the 
writ.  But  in  such  case,  as  in  motions  ex  parte  generally,  the 
court  is  more  strict  in  requiring  facts  to  bo  fully  stated  and 
clearly  proven,  and  will  more  carefully  scrutinize  the  proceed- 
in  os  than  in  cases  where  notice  has  been  given  to  the  opposite 

party. ^ 

§  '285.  (2)  Special  motions  upon  notice  to  the  opposite 
party.— Where  the  nature  of  the  motion  is  such  that  by  the 
rules'  and  practice  of  the  court  it  will  not  be  granted  as  of 
course,  and  cannot  be  obtained  by  an  ex  parte  proceeding,  a 
written  notice  of  such  application  must  be  served  ujion  the 
opposite  party,  or  upon  his  solicitor  if  he  has  appeared  in  the 
case.*  The  notice  of  "the  motion  must  be  properly  entitled 
in  the  cause  and  addressed  to  the  solicitor  of  the  opposite  party, 
or  to  the  party  himself  if  personal  service  is  intended,  and  be 
dated  and  signed  by  the  solicitor  of  the  party  movin«r.'"*  It 
must  also  specify  the  place  and  the  hour  at  which  the  motion 
will  be  brought  on  for  hearing,  or  it  may  state  that  the  motion 
will  be  made  "  at  the  opening  of  the  court  on  that  day,"  and 
the  statement  as  to  the  hour  or  time  for  bringing  on  the  mo- 
tion should  be  followed  by  the  following  statement:  "Or  as 
soon  thereafter  as  counsel  can  be  heard."  And  in  some  juris- 
dictions, especially  where  there  are  several  judges  presiding, 

1  2  Barb.  Ch.  Pr.  (2d  rev.  ed.)  567;        ^U.  S.  Eq.  Rule  6. 
2  Danl.  Ch.  PI.  &  Pr.  (4th  ed.)  1590-91;        »  Barb.  Ch.  Pr.(Book  3),  570;  2  DanL 
Isnard  v.  Cazeaux,  1  Pai-e  Ch.  (N.  Y.)    Ch.  Pi.  &  Pr.  (4th  ed.)  1594 
39;  Hart  v.  Small,  4  Paige,  55L 
25 


3S«5  INTERLOCUTORY    APPLICATIONS    AND    PR0CEKDINO8.       [§  285. 

it  would  be  required  to  state  the  name  of  the  judge  who  will 
hear  the  motion.  The  solicitor  should  also  state  with  particu- 
larity the  substance  and  terms  of  the  order  asked  for;  for  the 
court  will  not,  as  a  general  rule,  extend  the  order  beyond  the 
prayer  of  the  motion.  It  is  recommended,  and  it  is  the  usual 
practice,  to  add  a  prayer  for  general  relief  in  the  following 
lan"-ua"-e:  "  And  for  such  further  or  such  other  order  or  relief 
as  the  court  may  think  pro|)er  to  grant."  But  such  a  prayer 
would  not  warrant  the  court  in  granting  an  order  not  ger- 
mane to  the  object  and  purpose  of  the  motion,  or  supported 
by  the  statement  of  facts  set  forth  therein.'  The  motion  may 
contain  several  objects  if  they  are  not  inconsistent  with  each 
other,  or,  if  inconsistent,  are  prayed  for  in  the  alternative.^ 

It  seems  to  be  generally  conceded  that  the  merits  of  the  case 
cannot  be  tried  and  determined  upon  a  motion  to  strike  from 
the  files  an  answer  or  a  pleading,  but  that  where  the  case  is 
at  issue  upon  the  merits  it  should  be  regularly  heard  upon  the 
pleadings  and  proofs  and  not  upon  a  motion  to  strike. 

In  the  case  of  Conway  v.  Wilson^  the  motion  was  to  strike 
the  whole  answer  upon  the  ground  that  it  was  not  responsive 
to  the  allegations  of  the  bill  of  complaint  and  did  not  set  up 
any  defense  to  the  case  made  by  the  bill.  The  court  said: 
"The  last  reason  given  makes  it  most  plain  that  the  motion 
is  too  broad.  Where  the  complainant  expressly  charges  an 
equity,  and  calls  upon  the  defendant  to  answer  such  charge, 

Mn   Mann   v.  Brooks,  7  How.  Pr.  46  N.  Y.  2o9,  264;  Hovey  v.  Elliott, 

(N.  Y.)  449,  457,  where  the   motion  167  U.  &  409.  414;  McVeigh  v.  United 

contained  no  notice  that  a  feigned  States,  11  Wall  (U.  S.)  259;  Wester- 

issue  should  be  asked  for,  but  upon  velt  v.  Ackerson,  35  N.  J.  Eq.  43. 

the  hearing  it  was  urged,  because  of  ^  j    Foster's  Fed.   Pr.  426;  2  Dan', 

the   general   prayer   for  relief   con-  Ch.  Pr.  1594.     The  motion  "may  in- 

tained  in  the  motion,  the  court  say:  elude  several  objects,  such  as  the 

"Relief  has  sometimes  been  granted  appointment  of  a   receiver,   an   in- 

on  a  notice  as  general  as  this,  but  I  junction,  and  the  ]  ayment  of  money 

am  inclined  to  believe  that  it  would  into  court.    Where  separate  motions 

tend  to  prevent  surprise  if  the  court  were  made  for  two  objects,  which 

would  not  listen  to  a  prayer  until  might  have   been  obtained  by  one 

the  petitioner  has  discovered  and  is  motion,   the  court  made  a  special 

able  to  give  notice  of  what  he  wants,  order   directing  the   party    making 

.     .    .     I  am  of  opinion  that  it  would  such  motions  to  pay  the  extra  costs 

be  an  improper  exercise  of  the  dis-  occasioned  by  the  irregular  proceed- 

cretion    of    the    court    to    grant    a  ing." 

feigned  issua"    Van  Slyke  v.  Hyatt,  »  44  N.  J.  Eq.  457,  458. 


§  2bG.J       INIEKLOCUTORY    APPLICATIONS    AND    PROCEEDINGS.  387 

he  cannot  call  upon  the  court  to  strike  all  the  answer  out  be- 
cause it,  or  any  part  of  it,  admits  just  what  the  complainant 
alle^res.  It  would  be  most  absurd  to  call  upon  the  defendant 
to  r'spond,  and  when  he  does,  and  admits  the  claim,  to  strike 
out  all  his  admissions." 

But  where  the  real  question  involved  in  the  suit  had  been 
discussed  in  the  briefs  submitted  upon  a  motion  to  strike  a 
plea  upon  the  ground  that  it  was  not  a  defense  to  the  bill,  no 
objections  being  made  to  the  hearing,  but  counsel  appearing 
and  takin<r  part  and  discussing  the  question  upon  its  merits, 
the  court'held  that  meeting  the  case  thus  by  motion  was 
matter  of  mere  form  and  not  of  substance,  and,  as  the  whole 
controversy  had  been  discussed  in  the  briefs  submitted  by 
counsel,  ordered  that  the  pleas  be  stricken  from  the  files.^  It 
is  also  a  general  rule  that  orders  obtained  upon  motion  may 
be  discharged  upon  motion,  and  orders  obtained  ex  parte,  and 
which  have  never  been  assented  to  but  always  opposed,  may 
be  discharged  in  like  manner.' 

^  286.  Who  may  make  motion.—  As  a  general  rule  a  mo- 
tion may  be  made  by  any  party  to  the  cause,  but  it  has  been 
held  that  one  who  is  in  contempt  cannot  be  heard  for  any 
other  purpose  than  to  purge  himself  of  the  contempt.'  In  the 
federal  courts,  however,  one  in  contempt  is  only  debarred  from 
applications  which  are  not  of  strict  right,  but  rather  matters 
of  favor  in  the  discretion  of  the  court;  as,  for  example,  the 
setting  aside  of  a  default.* 

1  Union  Switch,  etc  Co.  v.  Phila-  (2  Heisk.)  97.  it  was  held  that  «a  mo- 

delphia    etc.   Ry.   Co.,  69  Fed  8:i3;  tion  to  strike  out  a  plea  in  equity  u 

Carpenter  v.  Gray,  38  N.  J.  Eq.  135.  equivalent   to  setting  it  down   for 

In  May  v.  Williams,  17  Ala.  23,  24.  it  argument" 

was  held  that  "the  answer  cannot  2  Eslava  t.  Mazange,  1  Wood  (U. 

be   considered  a  nullity  (even   if  it  S.),  627, 628, 

could  be  held  imperfect  in  any  re-  '  Nicholson  ▼.  Squire.  16  Ves.  Jr. 

spect),  and  the  rule  is  that  if  any  260;  2DanL  Ch.  P1.&  Pr.  (4thed.)1595. 

part  of  the  instrument,  purporting  ♦  In   Ellingwood    v.   Stevenson,    4 

to  be  an  answer,  is  entitled  to   the  Sandf.  Ch.  (N.  Y.)  366,  the  court  aay: 

character  of  an  answer,  that  is.  if  "The  motion  to  open  the  default  for 

it  be    an  answer   to   any   one   ma-  not  answering    would    be    granted 

terial   fact  alleged   in   the  bill,  the  upon   terms,  but  for  the  contempt 

court  will  not  take  it  off  the  tile,  for    which    the    attachment   is   or- 

but  will  leave   the   plaintifif   to  ex-  dered,     His  application  is  made  to 

cept  to  it  for  insufficiency."     And  in  the  favor  of  the  court,  and  he  can- 

Brevard  v.  Summar  et  at.  49  Tenn.  not  be  heard  until  his  contempt  be 


388  INTERLOODTOEY    APPLI0ATION8    AND    PROCEEDINGS.       [§  286. 

In  Uovey  v.  Elliott^  the  district  court  made  an  order  strik- 
ing the  answer  of  the  defendant  from  the  files  and  allowing  a 
decree  to  be  entered  that  the  bill  be  taken  pro  confesso  against 
him  because  he  was  guilty  of  contempt  in  not  paying  into  the 
court  money  held  by  him  which  was  the  subject  of  the  contro- 
versy in  the  pending  suit.     The  supreme  court  in  its  opinion, 

pureed."  Johnson  v.  Pinney,  1  Paige  ing  had  better  be  omitted  altOKether. 

Ch.  (N.  Y. )  646.  't  would  be  like  saying  to  a  |)arty, 

1  167  U  S.  409;  McVeigh  v.  United  Appear,   and    you    shall    be    heard; 

States.  11  Wall.  (U.  S.)  259;  Windsor  and,  when   he  has  appeared,  saying, 

V.   McVeigh,  'd6  U.    S.    274.     In    the  Your  appe<irance  sliali  not  be  recog- 

above  cause  Mr.  Justice  F'ield,  in  the  nize.l.  and  you  shall   not   be  heard, 

opinion,  used  the  following  vigorous  In    the    pre.sent    case,    tlie    district 

languaiie:  "Tl»e  principle  stated  in  court  not  only  in  effect  said  this,  but 

th  8  terse  language  lies  at  the  foun-  immediately  added  a  decree  of  con- 

dation  of  all  well-ordered  systems  of  demnation.  reciting  that  the  default 

jurisprudeiica     Wherever  one  is  as-  of"  all  persons  had  been  duly  entered. 

Bailed  in  his  person  or  his  property.  It  is  difficult   to  speak  of  a  decree 

there  he  may   defend,   for   the    lia-  thus  rendered  with    mo<ieration;  it 

bility  and  the  right  are  inseparable,  was  in  fact  a  mere  arbitr.iry  edict. 

This  is  a  principle  of  natural  justice,  clothed  in   the   form   of  a   judicial 

reco;,'nized  as  such  by  the  common  sentence     The    la«    is.  and   a;  ways 

intelligence  and   conscience  of   all  has  been,   that  whenever   notice  or 

nations.     A  sentence  of  a  court  pro-  citation  is  required,  the  party  cited 

nounced    against    a    party    without  has    the    right    to    appear    and    be 

hearmi,' him,  or  Kiving  himan  oppor-  heard;   and   when    the    latter  is  de- 

tunity  to  be  heard,  is  not  a  judicial  nied,  the   former   is   ineffectual  for 

determination  of  his  rights,  and  is  any  purpose.     The  denial  to  a  i^rty 

nor  entitled  to  respect  in  any  other  in  such  a  case  of  the  right  to  appear 

tribunal.     That  there  mu-st  be  notice  is  in  legal  effect   the    recall   of  the 

to  a  party  of  some  kind,  actual  or  citation  to  him.     The  j.enod  within 

constructive,    to  a   valid    judgment  which  the  appearance  mu.^t  be  made 

affecting    his    rights,    is    admitted,  and  the  right  to  be  heard  exercised 

Until  notice  is  given  the  court  has  is.  of  course,  a  matter  of  reRulation, 

no  jurisdution   in  any  case  to  pro-  depending  either  ujoii  po.-^itive  law, 

ceed  to  judgment,  whatever  its  au-  or  the  rules  or  orders  of  the  court, 

thority  may  lie  by  the  law  of  its  or-  or  the  established  practice   in  such 

ganization  over  the  subject-matter,  cases.     And  if  the  appearance  be  not 

But  notice  is  only  for  the  purpose  of  made,  and  the  right  to  be  heard  be 

affording  the  party  an  opportunity  not  exercised,  within  the  period  thus 

ol   being    he.rl   upon  the  claim  or  prescribed,  the  default  of  the  party 

the  charges  made;  it  is  a  summons  prosecuted,  or  possible  claimants  of 

to  him  to  appear  and  speak,  if  he  the  property,  may,  of  course,  be  en- 

has  anything  to  say,  why  the  judg-  tered.  and  the  allegations  of  the  libel 

ment  sought  should  not  be  rendered,  be  taken  as  true  for  the  puri^c-^e  of 

A  denial  to  a  party  of  the  benefit  of  the  proceeding.     But  the  denial  of 

a  notice  would  be  in  effect  to  deny  the  right  to  appear  and  he  he^.rd  at 

that  he  is  entitled  to  notice  at  all,  all  is  a  different  matter  alto-ether. "■ 
and  the  sham  and  deceptive  proceed- 


§  287.]       INTERLOCUTORY    APPLICATIONS    AND    PR0CEBDING8.  389 

after  reciting  the  facts,  say:  "The  mere  statement  of  this 
proposition  would  seem,  in  reason  and  conscience,  to  render 
imperative  a  negative  answer.  The  fundamental  conception 
of  a  court  of  justice  is  condemnation  only  after  hearing.  To 
say  that  courts  have  inherent  power  to  deny  all  right  to  de- 
fend an  action  and  to  render  decrees  without  any  hearing 
whatever  is,  in  the  very  nature  of  things,  to  convert  the  court 
exercising  such  an  authority  into  an  instrument  of  wrong  and 
oppression,  and  hence  to  strip  it  of  that  attribute  of  justice 
upon  which  the  exercise  of  judicial  power  necessarily  depends." 

The  party  making  the  motion  should  be  directly  interested 
in  it,  and  where  it  is  for  the  interest  of  one  under  disability  to 
make  a  motion  and  his  next  friend  refuses  to  do  so,  or  he  has 
no  next  friend,  the  court  will  appoint  one,  and  direct  him  to 
proceed  accord mg  to  the  practice  of  the  court. 

Where  the  case  is  one  prosecuted  on  behalf  of  the  relator 
by  the  attorney-general,  the  motion  must  be  made  on  behalf 
of  the  relator.' 

§  '2H1.  Service  and  proof  of  service  of  motion  and  notice 
of  hearing. —  The  service  of  the  motion  and  notice  of  hearing 
upon  the  opposite  party,  or  his  solicitor  if  he  has  one,  and  the 
proof  of  the  service  is  regulated  by  rule  in  the  several  courts. 
Generally  the  service  of  the  motion  and  notice  must  be  made 
at  least  four  days  prior  to  the  time  fixed  for  the  hearing.  The 
service  is  made  by  delivering  to  the  opposite  solicitor,  or  the 
party  in  case  he  has  no  solicitor,  a  true  copy  of  the  motion 
with  notice  of  hearing,  personally ;  or,  if  served  upon  a  solicitor, 
by  leaving  the  same  with  some  person  in  charge  of  his  office, 
or  b}'  depositing  them  in  the  United  States  mail  properly  ad- 
dressed and  post-paid,  in  such  case  allovvmg,  in  addition  to  the 
four  days'  time,  a  reasonable  time  for  the  transmission  of  the 
same  by  mail.  Proof  of  the  service  must  be  made  by  affidavit 
showing  the  manner  and  time  of  service  and  by  whom  served. 
This  proof  of  service  is  essential  if  the  opposite  party  does  not 
appear  at  the  hearing,  for  without  proof  of  proper  service  of 
the  notice  and  motion  in  the  absence  of  an  appearance  by  the 
opposite  party  the  court  would  not  hear  the  motion.^ 

^  Attorney-General  v.  Wright,  3  Beav.  447. 

-XJ.  S.  Eq.  Rules  5  and  6;  Rule  21  of  the  Circuit  Court  of  Appeala 


390  INTERLOCUTORY    APPLICATIONS    AND    PROCEEDINGS.       [§  288 

§  288.  The  hearing  of  motions. —  In  some  of  the  nisi  prius 
courts  the  practice  prevails  of  making  up  a  calendar  or  docket 
of  the  pending  motions  for  the  guidance  of  the  court  and  liti- 
gants. If  notice  of  the  hearing  has  been  properly  served  upon 
the  opposite  party,  the  moving  solicitor  may  on  proof  of  such 
service  bring  the  motion  on  for  hearing  in  his  absence  if  he 
fails  to  attend  pursuant  to  the  notice.  If  the  motion  be  an 
ex  parte  motion  it  will  be  taken  up  by  the  court  if  convenient, 
or  on  a  motion  day  when  brought  to  its  attention  by  the  mov- 
ing solicitor.  Proofs  to  sustain  the  motion  are  always  re- 
quired except  it  be  one  where  the  party  is  entitled  to  the  order 
prayed  for  of  course,  and  the  burden  of  proof  is  on  the  mov- 
ing party. 

If  the  motion  is  one  that  can  be  made  and  heard  ex  partf^ 
the  moving  solicitor  need  only  to  present  his  showing  of  facts 
to  the  court  at  the  hearing,  and  if  the  court  is  satisfied  the 
order  prayed  for  will  be  granted. 

If  the  motion  is  not  an  ex  parte  one,  the  moving  solicitor 
must,  in  the  first  instance,  depend  upon  and  present  at  the 
hearing  the  affidavits  and  proofs  with  which  he  has  served  the 
opposite  party  at  the  time  of  the  service  of  the  motion  and  the 
notice  of  hearing.  The  opposite  solicitor  may,  by  way  of  de- 
fense or  answer,  present  and  read  at  the  hearing  counter-affi- 
davits without  having  served  them  upon  the  moving  solicitor; 
but  if  these  affidavits  contain  new  matter  —  that  is,  matter  not 
purely  responsive,  and  which  demands  explanation  or  refu- 
tation,—  the  moving  party  may  introduce  further  affidavits  or 
proofs  by  way  of  rebuttal,  and  if  taken  by  surprise  the  court 
will,  in  furtherance  of  justice,  grant  a  continuance  of  the  hear- 
ing for  a  reasonable  time,  or,  if  deemed  best  and  for  the  inter- 
est of  the  parties,  will  permit  or  even  require  the  appearance 
of  witnesses  and  their  oral  examination  in  the  matter. 

In  the  appellate  courts  a  motion  docket  is  kept  by  the  clerk  of 
the  court,  and  motions  will  only  be  heard  on  regular  motion  days, 
for  one  of  which  days  they  must  be  noticed  and  will  be  called 
for  hearins:  from  the  motion  docket  and  heard  in  their  order. 
The  manner  of  bringing  motions  on  for  hearing  is  generally 
regulated  by  local  rules  and  usages  fixed  and  prevailing  in 
the  different  courts.  In  supreme  courts  the  attorney-gen- 
eral and  solicitor-general  take  precedence.     If  at  the  time  the 


I  288.]      JNTEELOOOTOKY   APPLICATIONS   AND   PEOOEEDINOS.  391 

motion  is  noticed  for  hearing  the  moving  party  does  not  appear 
The  notion  will  be  dismissed.  When  both  parties  appear,  the 
^or^party  has  the  opening  and  closing  in  presentmg  his 
Tolion  and  n'pon  the  argument.  As  a  genera  ru^e  no  o  e  ^^^^^ 
be  heard  in  support  of  the  motion  who  "\f]''"V^'ll2 
the  hearing  thereof,  or  is  directly  mterested  in  it.  In  some 
urisd  ct  ons,  by  rui;  motions  must  be  entered  m  a  motion  book 
iep  or  that  purpose,  and  w,U  be  called  for  hearmg  rom  that 
book,  and  no  Inotion  not  thus  entered  will  b-^  ^-rd.' 

A  motion  for  the  rehearing  or  re-argument  of  a  mot.oii  s 
addressed  to  the  sound  discretion  of  the  court^  ^nd  whe  e  it 
i made  to  appear  that  some  legal  reason  m  the  decision  of  the 
Motion  has  been  overlooked,  or  that  there  -»^  '^ -•«^PP^«'^,:="; 
Tn  of  facts,  which,  if  they  had  been  brought  to  the  attention 
of  the  court  the  judgment  or  order  arrived  at  would  have  been 
dfferent;  or  where" it  appears  that  there  has  been,-  ""-- 
r i  of  ustice  on  a  former  occasion,  the  court  will  often,  m 
"e  exercise  of  a  sound  discretion,  grant  a  rehearing  of  the 


motion. 


ITT  9  Fn  Rule  6-  2Danl.  Ch.  PI.  &    adjournment;    and  as  the  counsel 

p::5tLdTx:;  Lordca^..^.^  o.  -f- --- --  :rt 

tices.ch.34.pp  398  etc..  give  j^y  of  making  any  motions 
terestmK  account  of  the  eariy  c^ut^  i  /  intrusted 
lisH  procedure  u^n  t^e  ..arm,  of  ^^jX^Zo^'i^^  term,  when 
motions.  He  says:  Day  by  day  dur  i  fruitless  compil- 
ing the  term,  each  counsel  when  ^^J^J^m  ^  ^egin  with  the  back 
called  upon  had  ^een  acc^^f  ^^^  ro'-ateTthe  time  had  passed  by 
to  make  as  many  ^^^i^^^ J"^  ^n  their  motions  could  be  made 
cessively  and  contmuously  a«  he  ^^T'  benefit  to  their  clients.  The 
1    ,o«ri      ThA  ronseauence  was  that  wun  any  ueuouu  w 

itor-general,  andt\%oor  mree  uuioi     ^  ...     _„_„    hroueht  to  the 

Banks  V.  Carter,  7  Daly  (N.  Y.),  417.  5  Da  y  ^^^J->' 

Uwa,l,eld.  ""-^-r  ,^:-r.e  CZ.TI'TJZ  t..e  pendLcy 

Tt,:Z  Id  d'u  y   ubm  Sd^;  of  an  ap^al.  a  re.argun,ent  wa,  or- 

of  the  case  ana  uuiy  »                    j  Coleman  v.  Livingston,  66  N. 

counsel  was  overlooked,  or  where  tl^  dered.   Colema                  f^  ^  ^^^^ 

decision  is  in  conflict  with  an  ex-  J^  ^up^Ot  ^j^i^ 

press  statute,  or  a  controlling  decis-  40  N.  Y.  Sup.  Ot  ie«. 
ion,  to  which  attention  was  not  called 


392  INTKELOOUTOBY    APPU0ATION8    AND    PaOOBKDINUa.       [§  2&9. 


Petitions. 

§  289.  Proceeding  by  petition. —  The  distinction  between 
motions  and  petitions  does  not  appear  to  be  very  marked.  It 
may  be  said,  generally,  that  application  for  orders  which  par- 
take more  of  the  nature  of  decrees  or  decretal  orders  tlian  of 
interlocutory  proceedings  should  be  made  by  petition.  Where 
the  matter  sought  for  is  of  such  a  nature  as  presents  itself  in 
the  usual  and  ordinary  procetlureof  the  case;  where  the  facts 
upon  which  it  rests  may  be  said  to  be  present  and  growing  out 
of  the  proceedings  as  a  natural  sequence  and  do  not  demand  a 
long  or  careful  statement;  where  the  proceedings  upon  which 
the  a[)plication  is  founded  are  recent  and  the  adverse  party 
must  be  considered  to  be  entirely  familiar  with  all  of  them  and 
the  facts  involved,  and  there  is  no  reason  for  a  full  and  elaborate 
statement  in  writing  of  the  matters  claimed  by  the  petitioner 
and  of  the  relief  sought,  the  application  may  be  by  motion. 

The  distinction  seems  to  rest  in  the  importance  of  the  relief 
prayed  for,  and  the  presumption  from  the  proceedings  in  the 
cause  of  the  knowledge  and  expectations  of  the  adverse  party. 
Motions,  however,  which  fully  set  forth  the  relief  sought,  sup- 
ported by  affidavits  thereto  attached  served  upon  the  adverse 
party,  are  generally  as  ell'ectual  as  are  petitions,  and  the  dif- 
ference between  such  a  motion  and  a  petition  is  hardly  ap- 
parent. 

A  petition  has  been  defined  to  be  "an  application  in  writ- 
ing for  an  order  of  the  court  stating  the  circumstances  upon 
which  it  is  founded,  and  is  resorted  to  whenever  the  nature  of 
the  application  to  the  court  requires  a  fuller  statement  than 
can  be  conveniently  made  in  a  notice  of  a  motion." ' 

to  read,  even  had  they  been  toiling  tion  a  piece  in  rotation,  and  that  if 

all  nij^ht  at  their  chambers  instead  by  chance  the  court  rose  before  the 

of  sitting  up  in  the  House  of  Com-  whole  bar  had   been  gone  through, 

mons,  absorbed  in  party  struggles,  the  motion  should  begin  next  morn- 

Thus  the  interests  of  the  suitors  were  ing  with  him  whose  turn  it  was  to 

in  danger  of  being  neglected,  and  move  at  the  adjournment.   The  busi- 

the  judges  did  not  receive  the  fair  ness  was  thus  both  more  equally  dis- 

assistance  from  the  bar  in  coming  tril)uted  and  much  better  done." 

to  a  right   conclusion   which   they  ^2  Barb.  Ch.  Pr.  (2d  rev.  ed.)579;  2 

were  ei. titled  to  expect     Toremedy  Dani.Ch  Fl.  &  Pr.  (4th  ed.)  1603;  Eus- 

these  evils  a  rule  was  made  that  the  tis  v.  Hounes.  48  Miss.  36;  Lamb  v. 

counsel  should  only  make  one  mo-  Ewing,  54  Fed.  269;  Maitland  v.  Gib- 


§  290.]       INTERLOOCTOBT    APPLICATIONS    AND    PB0CEEDING8.  393 

8 -'MO    Form   of  the  petition.- A  petition   should  be  ad- 
dressed to  the  court,  or  judge  of  the  court  in  which  the  cause 
is  pending,  or  in  which  the  matter  is  to  be  determmed,  prop- 
erly entitled  in  the  cause,  if  in  a  pending  cause;  if  ^^^''tu 
petition  IS  in  relation  to  some  collateral  matter,  it  should  be 
entitled  in  such  matter.^     It  should  contain  a  stating  part  in 
which  the  facts  relied  upon   for  obtaining  the  order  desired 
should  be  succinctly  and  logically  stated,  numbering  each  par- 
agraph as  in  the  drafting  of  a  bill  of  complaint,  and  care  must 
be  taken  to  avoid  scandal  and  impertinence.^ 

The  statin^r  part  should  be  followed  by  a  prayer  asking  the 
court,  in  a  crear  and  concise  manner,  to  grant  the  relief  for 
which  the  petition  is  filed,  and  concluding  with  a  prayer  for 

ireneral  relief.  .  .  

The  petition  should  be  signed  by  the  petitioner,  or  by  some 
one  duly  authorized  by  him  to  sign  it,  and  by  his  solicitor,  and 
verified  by  the  author  of  the  petition,  or  the  person  authorized 

of  recent  proceedings  concerning 
which  there  is  no  doubt.  For,  as  the 
adverse  party  knows  nothing  but 
by  the  notice,  containing  only  the 
name  of  the  cause  and  what  is  prayed 
of  the  court,  the  proceedings  ought 
to  be  recent  and  notorious,  so  as  that 
the  adverse  party  may  be  supposed 
to  be  perfectly  cognizant  of  all  the 
steps  and  proceedings  in  the  cause, 
as  much  as  if  at  a  greater  expense 
they  were  recited  in  a  petition." 

1  Stafford  v.  Brown,  4  Paige  (N.Y.), 
360.  But  in  Sewall  v.  Brainerd,  38 
Vt.  364,  it  was  held  that  the  failure 
to  entitle  a  petition  in  the  original 
cause,  when  it  recited  the  proceed- 
ings in  the  cause  and  was  clearly 
identified  with  it,  was  immaterial 

2  King  V.  Insurance  Co.,  26  Wend. 
(N.  Y.)  62.  But  where  such  scandal- 
ous matter  is  connected  with  the 
merits  of  the  case  and  becomes  ma- 
terial to  the  inquiry  it  will  not  be 
stricken  out  and  is  proper  matter  of 
averment.  Lankton  v.  Scott,  Kir- 
by's  Rep.  (Conn.)  356. 


son.  79  Fed.  136w     In  Shaft  v.  Insur- 
ance Co..  67  N.  Y.  544.  517.  the  court 
say:  "A  petition,  m  common  phrase, 
is  a  reque.-^t  in  writing;  and  in  legal 
lanuuage  describes  an  application  to 
a  court  in  writing,  in  contradistinc- 
tion   to    a   motion,   which   may    he 
made  rim  voce.    There  is  nothing  in 
the  thing  itself,  nor  in  the  naming 
of  it  by  its  name  alone  in  a  statute, 
which   demands  that  it  should  be 
verified.    Doubtless  the  general  prac- 
tice is  to  verify  a   petition,  though 
often  this  is  required  by  the  stand- 
ing rules  of  courts,  rather  than  by  the 
force  of  the  term  itself,  or  the  exi- 
gency of  the  statute."    State  Bank 
V.  Bank.  34  N.  J.   Eq.  45a     In  Ship- 
brooke  v.  Hinchinbrook,  13  Ves.  Jr. 
387,   Lord    Chancellor  Erskine    dis- 
cussed at  some  length  the  distinction 
between  petitions  and  motions,  say- 
ing, among  other  things,  "  but.  gen- 
erally speaking,  motions,  which  have 
for  their  object  to  give  effect  to  de- 
crees and  orders,  should  be  confined 
to  cases  where  the  order,  which  is  to 
be  made  upon  the  motion,  arises  out 


304  INTKKLoOUTOKY    AIMLICATIONS    AND    IMtOCKEDINOS.       [§  2'Jl. 

to  si<,'n  and  verify  it.  The  veriticiition  should  he  that  the  pe- 
tition IS  true  of  his  own  knowledge  except  as  to  matters  therein 
stilted  upon  information  and  belief,  and  as  to  those  mutters  he 
believes  it  to  bo  true.' 

^2t)l.  Serviui;  the  petition  and  notice  and  tiliii:;  the 
same. —  A  true  copy  of  the  petition,  together  with  a  notice  of 
the  time  and  place  and  l)eforo  whom  it  will  be  heard,  should 
bo  stTVeil  upon  the  opposite  party  or  his  solicitor,  and  in  casis 
where  service  should  be  made  u\K>n  the  party  personally  and 
such  service  is  impracticable,  the  court,  upon  a  showing  of  the 
facts,  will  name  a  substituted  service  —  the  rights  of  the  parties 
will  not  be  in  anywise  jeopardized.  I'roof  of  said  service 
should  be  made  by  the  atKdavit  of  the  person  serving  the  peti- 
tion and  notice  attiched  ;  the  original  petition  with  notice  ol 
service  should  bo  tiled  with  the  register  of  the  court  where  the 
cause  is  pending  or  the  petition  is  to  be  hoard. 

While  the  general  mcKJe  of  proving  service  is  as  stated,  it  ij 
not  essential  that  it  should  be  made  in  this  way;  it  may  be 
made  in  any  satisfactory  manner,  by  atlidavit  tiled  at  the  hear- 
ing, or  oven  by  oral  testimony.  The  same  rule  prevails,  as  has 
alreatly  been  stated,  in  the  hearing  of  motions.  If  there  is  no 
appearance  of  the  adverse  party  at  the  time  and  place  set  for 
the  hearing,  the  court  will  require  proof  of  service  of  the 
petition  and  notice  of  hearing.  The  time  for  hearing  the  peti- 
tion is  generally  regulated  by  the  rules  and  practice  of  the 
court.'  The  party  upon  whom  said  petition  anil  notice  is  served 
may  defend  by  demurrer,  plea  or  answer.  If  an  answer  is 
filed,  the  petitioner,  if  he  desires  to  contest  the  issues  of  fact 
raised  by  it,  may  reply,  and  the  court  in  such  case  may  order 
a  reference  to  take  proofs  upon  the  issue  so  made,  or  hear  the 
proofs  in  open  court. 

In  Wallace  v.  Field^  a  petition  was  filed  to  obtain  an  execu- 
tion for  a  deficiency  after  sale  upon  a  decree  for  foreclosure. 
The  court  say:  "The  practice  in  these  cases  requires  the  de- 

*  Hathaway    v.     Scott,    11    Paige  1  Paige  (N.  Y.).  39;  Ransom  v.  Suther- 

(N.  Y.),  173;  Hunt  v.  Wing.  lOHeisk.  land.  46  Mich.  489. 

(Tenn.)  1^9;  Ransome  v.  Sutherland,  '  56  Mich.  3;  Ransom  v.  Sutherland, 

46   Mich.   489;  Wallace  v.    Field,  56  46  Mich.  489;  Hunt  v.  Wallis,  6  Paige, 

Mich.  3.  371;   1  Barb.  Ch.  Pr.  696;  Jennison, 

»  Long  Bnincli,  etc,  Co.  v.  Sneden,  Ch.  Pr.  246,  27a 
86  N.  J.  Eq.  539;    Isuard  v.  Cazeaux, 


§2'.i2.j     iNTi!;RLocun)UY  applications  and  proceedings.        395 

fendiint,  if  he  desires  to  contest  the  plaintiff's  right  to  execu- 
tion, to  fi  le  his  answer  setting  out  the  grounds  of  his  objection. 
These  grounds  must  not  be  inconsistent  with  the  decree.  The 
validity  of  the  decree  or  its  justice  cannot  be  attacked  or  in- 
quired into.  The  answer  should  contain  grounds  which  usu- 
ally operate  in  its  discharge,  and,  like  the  petition,  should  be 
on  oath.  The  complainant  can  take  issue  upon  such  an  an- 
swer, and,  if  necessary,  have  a  reference  to  take  proofs.  The 
decree  and  report  of  deficiency  make  out  a  prima  facie  case 
for  the  writ.  No  replication  to  the  answer,  however,  is  nec- 
essary, unless  proper  matter  is  set  up  in  the  answer  in  discharge 
of  tlie  deficiency  or  some  part  thereof.  The  proceedings  after 
decree,  in  making  the  sale,  having  been  duly  confirmed,  can  no 
more  be  attacked  in  tliis  proceeding,  unless  void,  than  the  de- 
cree itself." 

§  •2i>2.  The  proofs  upon  which  tlie  petition  is  to  be  heard 
and  the  hearing. —  If  the  petition  is  based  upon  allidavits  to 
be  pr.'sented  to  the  court  at  the  hearing,  together  with  the  rec- 
ords and  files  in  the  cause  pending  in  the  same  court,  the  orig- 
inal affidavits  duly  entitled  in  the  court  and  caus(;  and  prop- 
erly sworn  to  should  be  attach«Ml  to  the  original  petition. 
Copies  of  these  allidavits  should  be  attached  to  a  coj)y  of  the 
petition  and  served  upon  the  adverse  party  or  his  solicitor,  and 
in  tlie  notice  of  hearing  it  should  be  stated  that  the  petition  is 
bused  upon  the  affidavits  so  attached,  with  copies  of  which  the 
said  party  is  served,  and  upon  the  records  and  files  in  the  cause. 

The  hearing  of  the  petition  proceeds  in  a  similar  manni-r  to 
that  which  prevails  upon  the  hearing  of  motions.  The  mov- 
ing party  is  entitled  to  the  oprning  and  closing  in  the  produc- 
tion of  his  proof  and  upon  the  argument.  The  proof  generally 
consists  of  affidavits  produced  by  the  parties  at  the  hearing, 
but  only  affidavits,  copies  of  which  have  been  served  upon  the 
adverse  party,  can  be  presented  and  read  by  the  moving  party; 
affidavits  in  answer  thereto  may  be  presented  by  the  adverse 
party  and  read  without  serving,'  copies  upon  the  petitioner,  but, 
as  in  a  hearing  upon  a  motion,  the  court  may  require  further 
proof  and  may  direct  that  the  parties  or  other  witnesses  mak- 
ing the  affidavits  be  brought  into  court  for  oral  examination. 
The  course  or  procedure  upon  the  hearing,  however,  is  gener- 
ally regulated  by  the  rules  and  practice  of  the  court. 


396  INTERLOCUTORY    APPLICATIONS    AND    PE0CEEDIN08.       [§  291 

In  the  case  of  Ransom  v.  Sutherland^  the  solicitor  for  the 
complainant  served  a  notice  on  the  solicitor,  who  represented 
the  defendant  in  the  foreclosure  suit,  that  on  a  certain  day  he 
would  move  the  court  for  an  execution  for  the  deficiency  re- 
ported upon  the  mortgage  sale  and  that  the  motion  would  be 
based  on  "the  files,  decree,  report  of  sale  and  subsequent  pro- 
ceedings had  in  the  cause."  At  the  hearing  defendant's  solic- 
itor objected  that  no  notice  of  the  motion  had  been  served 
and  moved  to  dismiss  the  application,  which  was  denied. 
The  complainant  produced  the  decree,  report  of  sale  and  de- 
ficiency and  an  execution  was  issued;  from  this  defendant  ap- 
pealed. The  supreme  court  say:  "The  whole  proceeding  was 
informal;  and  while  it  might  have  been  sustained  had  no  ob- 
jection been  made  at  the  time,  the  irregularities  are  such  as 
the  defendant  had  a  right  to  take  advantage  of.  The  applica- 
tion should  have  been  made  on  sworn  petition,  reciting  briefly 
the  facts  giving  the  right  to  an  execution,  and  praying  the 
court  to  direct  its  issue.  It  is  not  absolutely  essential  that  the 
application  take  the  form  of  a  petition;  but  it  should  be  in 
writing  and  under  oath,  and  it  should  be  served  on  the  party 
against  whom  execution  is  sought,  with  notice  of  the  time 
when  it  will  be  presented.  The  service  should  be  on  the  de- 
fendant in  person  wherever  that  is  practicable;  for  presump- 
tively the  retainer  of  a  solicitor  in  a  cause  does  not  extend  to 
proceedings  taken  subsequent  to  the  decree  for  its  enforcement. 
If  personal  service  on  the  defendant  is  impracticable,  the  court, 
on  a  showing  of  the  facts,  may  direct  a  substituted  service. 
When  the  defendant  is  brought  in  on  petition  and  notice,  if  he 
contests  the  right  to  an  execution,  he  should  file  his  answer 
setting  out  the  grounds  of  his  objection.  It  is  hardly  neces- 
sary to  say  that  these  must  be  grounds  not  inconsistent  with 
the  decree  and  usually  such  as  operate  in  its  discharge;  the 
validity  or  justice  of  the  decree  cannot  be  inquired  into  on 
such  an  application.  The  answer,  like  the  application,  should 
be  on  oath,  and  if  it  present  matter  of  discharge,  the  complain- 
ant may  take  issue  upon  it,  and  the  court  in  proper  cases  may 
order  a  reference  to  take  proofs.  But  in  such  a  case  the  bur- 
den of  proof  to  show  discharge  must  be  on  the  defendant,  for 

146  Mich.  489;  Wallace  v.  Field,  56  Mich.  3. 


§§293-94.]    INTEKLOCUTORT    APPLICATIONS    AND    PK00EEDING8.    39T 

the  decree  adjudging  the  defendant  personally  liable,  and  th© 
report  of  the  deficiency,  make  out  a  prima  facie  case  against 
him." 

§  298.  The  use  of  petitions. —  Petitions  that  are  filed  by 
persons  who  are  not  parties  to  a  pending  suit  for  the  obtaining 
of  some  benefit  of  proceedings  in  the  cause,  or  for  the  obtain- 
ing of  an  order  in  some  matter  which  is  not  the  subject  of  liti- 
gation, have  been  distinguished  from  those  petitions  which  are 
made  in  a  pending  cause;  the  latter  being  termed  "cause  peti- 
tions," the  former  not  cause  petitions.  Among  some  examples 
that  might  be  given  of  petitions  that  are  not  cause  petitions 
are  those  filed  for  the  appointment  of  a  guardian  of  an  infant, 
or  for  the  appointment  or  removal  of  a  trustee. 

Petitions  filed  in  pending  causes  are  very  numerous,  and  it 
would  not  be  practicable  or  wise  to  undertake  to  enumerate 
them.  Among  some  of  the  more  important  petitions,  however, 
may  be  mentioned  petitions  for  leave  to  file  a  bill  of  review  or 
a  supplemental  bill;  for  the  appointment  of  a  receiver;  for  the 
issuing  of  an  execution  upon  deficiency  after  foreclosure  sale; 
for  an  order  allowing  a  party  to  intervene  in  a  pending  chan- 
cery cause,  and  in  such  like  cases  where  it  is  necessary  for  the 
petitioner  to  fully  set  forth  facts  and  circumstances  entitling 
him  to  the  relief  prayed.  In  these  and  many  other  cases  it  is 
necessary  that  the  party  proceed  by  a  petition  in  writing  rather 
than  b}'  motion.  To  such  petitions  the  adverse  party  may  file 
an  answer  traversing  the  facts  alleged  in  the  petition,  which 
issue,  if  the  petitioner  replies  to  the  answer,  may  necessitate  a 
hearing  and  determination  by  the  court  involving  the  hearing 
of  proofs  adduced  by  the  several  parties. 

The  right  of  parties  to  intervene  in  a  pending  equity  cause 
has  already  been  briefiy  alluded  to.^ 

§  294.  Intervention  —  Who  may  intervene. —  Intervention 
is  that  act  or  proceeding  by  which  one  on  his  own  motion  be- 
comes a  party  to  the  suit  pending  between  others.^  The  right 
to  intervene  is  sought  and  obtained  by  a  petition  filed  in  the 
cause,  the  petitioner  praying  permission  to  intervene  and  be- 
come a  party  either  complainant  or  defendant.  One  asking 
permission  to  intervene  must  have  some  interest  or  right  which 

^Ante,  %  63.  '  Anderson's  Law  Dictionary. 


odS  INTERLOOOTOKY    APPLICATIONS    AND    TliOOKEDINOS.       [§   294:, 

will  be  affected  by  the  decree  in  the  pending  suit.  80  it  has 
been  held  that  persons  who  belong  to  a  class  represented  in 
the  pending  suit  may  intervene  as  mortgage  creditors  repre- 
sented by  the  trustee  of  the  mortgage;  claimants  to  the  title 
of  the  property  held  by  a  receiver;'  a  judgment  creditor  who 
has  levied  upon  his  debtor's  property  after  it  has  come  into  the 
hands  of  a  receiver  in  a  foreclosure  case,  the  creditor  claiming 
collusion  for  the  purpose  of  defeating  his  recovery,^  the  fx'ti- 
tioner  disclaiming  that  the  levy  was  made  for  the  purpose  of 
getting  possession  of  the  property  under  his  levy,  and  that  his 
intention  was  merely  to  get  a  foothold  on  which  to  make  an 
application  for  intervention,  but  without  intention  to  disturb 
the  receiver  or  dispute  the  authority  of  the  court.' 

Stockholders  of  a  corporation  may  intervene  where  fraud  has 
been  perpetrated  by  the  directors  of  the  company  which 
affects  the  interests  of  the  stockholders. 

In  WiUiaina  v.  Morgan*  a  bondholder  secured  by  a  mortgage 
under  foreclosure  was  held  to  have  such  an  interest  in  the 
amount  of  the  trustee's  compensation  as  to  entitle  him  to  inter- 
vene and  contest  it,  and  to  app^.'al  from  an  adverse  decision. 

It  has  been  held  that  bondholders  will  be  allowed  to  inter- 
vene where  the  tru.itee  representing  them  under  different  mortr 
gages,  with  conllicting  interests,  is  unable,  on  account  of  such 
conflicting  interests,  to  exercise  unbiased  judgment.'  But 
when  in  a  foreclosure  suit  against  a  railroad  corporation  which 
controlled  and  operated  a  system  composed  of  several  roads,  it 
appeared  that  a  receiver  had  been  appointed  for  the  property, 
that  a  trust  company  was  trustee  under  twelve  different  mort- 
gages or  trust  instruments  executed  by  several  of  the  corpora- 
tions comprising  a  system  of  the  defendant  company ;  but  it 
did  not  appear  that  there  were  such  conflicting  interests  as 
would  render  it  improper  for  the  trustee  to  act,  it  not  being 
alleged  or  shown  that  he  was  unfaithful  to  the  trust  coufided 
or  had  failed  to  represent  the  several  interests  of  the  com- 
panies, it  was  held  the  bondholders  would  not  be  permitted  to 

•Pelham  v.  Newcastle,  3  Swanst.        3  Bayliss  v.  Lafayette,  etc.  Ry.  Ca, 
290.  8  Biss.  (U.  S.)  193. 

2  Farmers',  etc.  Ck).  v.  Railway  Co.,        *  1 11  U.  S.  684 
43  Fed-  223.  »  Ric-liards  v.  Chesapeake,  etc  Ry. 

Co..  1  Hughes  (U.  S.),  28,  a6. 


§  295.]       INTERLOCUTORY    APPLICATIONS    AND    PROCEEDINGS.  39& 

become  parties  in  their  individual  capacities  or  by  committee, 
the  court  sa3ing:  "It  will  not  be  presumed  that  the  trustee 
will  be  unfaithful  to  the  trusts  confided  to  it,  and  it  will  be 
time  enough  to  consider  the  question  of  making  the  bondhold- 
ers or  their  committees  parties  for  their  own  protection  when 
the  trustee  fails  to  promptly  and  faithfully-  discharge  its  duties. 
It  will  not  do  to  permit  bondholders  in  such  proceedings  as 
this  to  become  parties  in  their  individual  capacity  or  by  com- 
mittees, without  showing  why  their  interests  will  not  be  prop- 
erly guarded  by  the  trustee  selected  when  the  trust  was  ex- 
ecuted, and  then  fully  authorized  to  represent  them,"  ^  And 
generally  it  may  be  said  that  the  stockholders  of  corporations 
will  always  be  allowed  to  intervene  if  there  is  danger  that 
their  interests  will  suffer  by  reason  of  fraud,  neglect  or  collu- 
sion on  the  part  of  the  directors  or  officers  of  the  company; 
and  the  courts  have  gone  so  far  in  some  cases  as  to  allow 
stockholders  to  file  an  answer  and  defend  in  the  suit  in  the 
name  of  the  corporation;  but  ordinarily,  in  the  absence  of 
fraud,  neglect  or  collusion,  stockholders  will  not  be  allowed  to 
intervene.  '^ 

§  295.  The  petition  for  intervention. —  The  petition  should 
show  briefly  and  concisely  the  nature  of  the  original  suit,'  and 
should  contain  averments  setting  forth  the  rights  of  the  peti- 
tioner involved  in  the  cause,  the  nature  of  those  rights  and 
how  they  will  be  affected  by  a  decree  in  the  pending  suit.  It 
has  been  said:  "That  while  a  petition  of  intervention  need 
not  be  as  formal  as  a  bill  of  complaint,  and  should  perhaps  be 

1  Clyde  V.  Railway  Co.,  55  Fed.  445,  fected,  the  stockholders  can  come  in 
448.  as  parties  and  ask  that  their  prop- 
s'In  Bayliss  v.  Railway  Co.,  8  Biss.  erty  shall  be  relieved  from  the  effect 
(U.  S.)  193,  196,  it  was  held  that  of  such  fraud;  but  in  all  cases  wliich 
stockholders  have  the  right  to  inter-  have  been  decided  in  the  supreme 
vene  as  parties  to  a  suit  against  the  court,  and,  I  think,  by  other  courts 
company  where  any  fraud  has  been  upon  this  subject,  it  is  assumed  that 
perpetrated  by  the  direc-tors  by  the  stockholders  will  have  an  inter- 
which  the  propprty  interest  of  the  est  or  property  remaining  after  it  is 
stockholders  is  affected.  The  court,  relieved  from  the  effect  of  the  fraud 
in  its  opinion,  say:  "I  think  the  au-  of  the  directors  or  the  officers  of  the 
thorities  are  very  clear  that  where  company." 

any  fraud  has  been  perpetrated  by  ^Ex  parte  Jordon,  94  U.  S.  248; 

the  directors,  by  which  the  property  Ransome  v.  Winn,   18  How.  (U.  S.) 

or  interest  of  the  stockholders  is  af-  295. 


400  INTERLOCUTORY    APPLICATIONS    AND    PROCEEDINGS.       [§  296. 

distinguished  for  brevity,  it  yet  should  exhibit  all  the  mate- 
rial facts  which  are  relied  upon  for  the  specific  relief  invoked, 
embodying,  either  by  recital  or  by  reference,  so  much  of  the 
record  in  the  original  suit  in  which  the  petition  is  filed  as  is 
essential  to  show  a  right  to  the  particular  relief  demanded  by 
the  petition."  ^ 

The  petition  must  present  a  case  of  substantial  equity.^  It 
must  contain  a  prayer  asking  that  the  party  be  allowed  to  in- 
tervene in  the  cause,  and  should  be  signed  by  the  petitioner 
and  verified  by  affidavit.  Such  petition  for  intervention  may 
be  filed  at  any  time  during  the  pendency  of  the  original  cause. 
It  should  be  served,  with  notice  of  hearing,  upon  the  op[)Osite 
party  in  the  usual  manner  of  serving  petitions,  and  be  filed  in 
the  cause. 

§  21K).  Defenses  to  petitions  for  intervention. —  Petitions 
for  intervention  may  be  met  and  defended  by  demurrer,  plea 
or  answer.  If  the  petition  does  not  set  out  facts  which  will 
warrant  the  court  in  making  the  order  allowing  the  peti- 
tioner to  intervene,  it  is  demurrable.'  If  some  particular  facts 
exist  not  shown  upon  the  face  of  the  petition  which  would 
completely  answer  and  defeat  it,  it  may  be  interposed  by  a 
plea.  If  the  opposite  party  desires  to  defend  the  petition  upon 
its  merits,  denying  the  allegations  therein  which  he  claims  to 
be  untrue,  the  defense  should  be  by  answer.* 

The  usual  and  ordinary  rules  of  pleading  governing  defenses 
apply  to  petitions  of  this  kind. 

1  Empire  Distilling  Co.  v.  M'Nulta,  *Shepard  v.  Murray  Ck).,  33  Minn. 

77  Fed.  703;  Clyde  v.  Railway  Co.,  519. 

55  Fed.  44").  <DallioflF  v.  Cofifman,  37  Iowa,  283; 

^  Guest  V.  Hewitt.  27  N.  J.  Eq.  "Woodward  v.  Jackson,  85  Iowa.  432. 
479;  Davis  v.  Sullivan,  38  N.  J.  Eq.  569. 


CHAPTER  XII. 


EVIDENCa 


§  207.  Takinpj  proofs  forthe  hearing:. 

2'-J6.  Prictice  in  United  States 
court. 

299.  Depositions  of  witnesses  be- 
yond tlie  jurisdiction  of  the 
court. 


300.  Admission  of  evidence. 

301.  Pleadings  as  evidence. 

302.  Tiie  burden  of  proof. 

303.  Proof  confined  to  issue  made 

by  pleading. 

304.  Effect  of  variance. 


§207.  Taking  proofs  for  the  liearing.— When  the  repli- 
cation is  served  and  filed,  the  cause  is  at  issue  and  ready  for 
taking  proofs  for  the  hearini^.  Many  changes  in  the  practice 
governing  the  taking  of  proofs  have  been  made  since  the  rules 
that  obtained  in  the  early  English  chancery  court.  Formerly, 
witnesses  who  were  within  the  jurisdiction  of  the  court  were 
examined  privately  by  an  examiner  or  commissioner  appointed 
by  the  court,  upon  written  interrogatories  and  cross-inter- 
rogatories prepared  by  the  solicitors  of  the  parties  or  by  the 
court.  These  interrogatories  were  not  served  upon  the  op- 
posite solicitor,  and  the  cross-interrogatories  were  prepared 
without  having  the  benefit  of  the  interrogatories  in  chief; 
therefore,  the  cross-examination  was  of  little,  if  any,  value. 

The  testimony  was  taken  by  the  officer  and  kept  secret  until 
all  the  testimony  for  both  parties  in  the  cause  was  taken,  when 
by  an  order  of  the  court  a  time  was  set  for  the  publication  of 
the  testimony,—  that  is,  for  opening  the  same  and  submitting  it 
to  the  inspection  of  the  parties  or  their  solicitors  in  the  cause. 
This  manner  of  taking  proofs,  however,  gave  way  to  that  other 
method  which  long  continued,  and  in  some  jurisdictions  is 
still  in  vogue,  which  allowed  the  solicitor  or  counsel  for  the 
respective  parties  to  be  present  at  the  taking  of  the  proofs  and 
to  propound  questions  to  the  witnesses  by  way  of  direct  or 
examination  in  chief  and  cross-examination. 

By  this  later  practice,  within  a  certain  time  fixed  by  rule, 
either  party  may  serve  notice  upon  the  opposite  party  of  the 
taking  of  the  testimony  of  certain  witnesses  named  in  the  no- 

26 


402 


EVIDENCE. 


[§29' 


tice  before  a  commissioner,  examiner  or  master,  as  the  case 
may  be,  and  at  a  certain  time  and  place.  At  the  time  and 
place  noticed,  tlie  witnesses  are  brought  in  by  subpoena  and 
examined  orally  by  the  solicitor  or  counsel  of  the  parties  to 
the  cause,  the  testimon}'^  of  the  witnesses  being  taken  in  writ- 
ing and  when  completed  signed  by  them  in  the  presence  of 
the  commissioner  before  whom  it  is  taken,  after  it  is  read  over 
to  them,  when  it  will  be  certified  by  the  commissioner.  The 
proofs  so  taken  are  filed  with  the  register  of  the  court  where 
the  cause  is  pending,  to  be  used  upon  the  hearing.  This  man- 
ner of  procuring  proofs  continues  until  the  time  for  taking 
proofs  is  closed  by  an  order  entered  of  course  by  one  of  the 
parties;  the  practice  and  the  time  for  closing  the  proofs  being 
fixed  by  the  rules  of  the  court. 

Objections  to  testimony  may  be  made  by  either  party  to  the 
examiner,  but  he  cannot  rule  upon  the  objections;  his  duty 
being  to  note  the  objections  in  writing  and  take  the  answers 
under  the  objection  of  the  witness,  all  of  which  must  be  re- 
ported in  the  deposition  to  the  court.' 


i  Adams'  Eq.  (6th  Am.  ed.)  71& 
The  author  gives  the  rule  of  f)rac- 
tice  for  tlie  taking  of  testimony  in 
law  cases  and  undertakes  to  show 
the  necessity  of  taking  the  proofs 
orally  and  in  open  court  in  such 
cases,  and  follows  with  the  rule  for 
the  taking  of  proofs  in  ch  incery 
cases,  giving  reasons  why  the  testi- 
mony should  not  be  taken  in  open 
court  and  why  the  exauiinatioii 
should  be  in  private.     He  says: 

"In  a  court  of  law,  therefore,  a 
viva  voce  examination  in  public  is 
the  regular  mode  of  proof.  In  equity, 
the  object  of  the  evidence  is  differ- 
ent, and  so  also  is  the  mode  of  tak- 
ing it. 

"The  trial  and  determination  of 
disputed  issues  are  not  the  principal 
objects  of  evidence  in  equity;    for 


ferred  to  the  verdict  of  a  jury.  The 
jower,  therefore,  of  sifting  and  comr 
paring  testimony,  which  is  the  prim 
ary  requisite  at  law.  becomes  com 
parativeiy  unimportant  in  equity: 
and  ti  e  principal  objects  there  con- 
templated are,  fiis.t,  to  elicit  a  swora 
detail  of  facts,  on  which  the  court 
may  adjudge  the  equities;  and  sec- 
ondly, to  preserve  it  in  an  accurate 
record,  for  the  use,  if  needed,  of  the 
appellate  court. 

"For  this  reason,  it  is  required  in 
equity  that  all  witnesses  shall  be 
examined  before  the  hearing,  and 
their  answers  taken  down  in  writ- 
ing, so  that,  when  the  cause  comes  on 
for  decision,  the  judge  may  not  be 
di.stracted  by  the  trial  of  separate 
issues  on  evidence  then  brought  for- 
ward   for  the   first  time,    but   may 


the  nature  of  the  questions   there  give  his  undivided  attention  to  the 

litigated  does  not  generally  give  rise  decree,  which  the  facts  admitted  or 

to  such  issues;  and  those  which  do  proved  will  warrant;  and  that,  if  his 

occur,  if   they   present  any  serious  decree  be  appealed  from,  the  court 

diflSculty  of  trial,  are   generally  re-  of  appeal  may  have,  in  an  authorized 


297.] 


EVIDENCE. 


401 


The  tendenc}''  of  modern  practice  in  the  equity  court  is  to  pro- 
duce the  proofs  at  the  hearing  the  same  as  in  a  trial  of  a  suit  at 
law  by  bringing  the  witnesses  into  open  court  and  examining 
them  before  the  court  which  is  to  hear  and  determine  the  cause ; 


record,  all  the  materials  on  which  it 
is  founded. 

"The  protracted  nature  of  a  writ- 
ten exatnination  necessarily  involves 
the  risk  that  delects  of  evidence 
might  be  discovered  in  the  course  of 
taking  it,  and  false  testimony  pro- 
cured to  remedy  them.  In  order  to 
avoid  this  risk,  the  witnesses  are  ex- 
amined privately  by  an  officer  of  the 
court;  and  it  is  an  imperative  rule 
that  until  the  examination  has  been 
completed  and  the  entire  deposi- 
tions given  out.  which  is  technically 
termed  passing  publication,  neither 
party  shall  be  made  acquainted  with 
his  adversary's  interrogatories,  nor 
with  any  part  of  the  answers  on 
either  side;  and  that  after  publica- 
tion, no  further  witnesses  can  be  ex- 
amined without  special  leave. 

"The  secrecy  thus  observed  must 
to  some  extent  involve  the  possibil- 
ity, not  only  of  false  evidence  being 
given  but  of  true  evidence  being 
given  in  an  imperfect  form,  where  a 
party,  in  the  absence  of  his  opponent, 
so  frames  his  interrogatories  as  to 
elicit  testimony  respecting  part  only 
of  a  transaction.  This  is  an  evil 
which  cannot  altogether  be  avoided; 
but  it  is  in  a  great  degree  remedied 
by  the  rule  that,  in  order  to  give 
weight  to  evidence,  the  facts  wliich 
it  is  intended  to  support  must  have 
been  previously  detailed  in  tlie  plead- 
ings. Should  this  security  prove  in- 
sufficient, so  that  a  doubt  exists  at 
the  hearing  whether  all  material 
facts  are  before  the  court,  further 
inquiries  may  be  directed,  and  the 
decision  in  the  meantime  delayed. 

"The  mode  of  examination  is  by 
written  interrogatories,  vvliich,in  the 
cases  of  witnesses  resident   within 


twenty  miles  of  London,  are  admin- 
istered by  an  officer  called  the  exam- 
iner; or  if  they  are  resident  beyond 
that  distance,  and  the  parties  are 
unwilling  to  incur  the  expense  of 
bringing  them  to  town,  by  commis- 
sioners specially  appointed  for  the 
purpose. 

"  The  interrogatories,  as  well  as 
the  bill  and  answer,  must  be  signed 
by  counsel,  as  a  security  to  the  court 
that  no  irrelevant  or  improper  mat- 
ter is  inserted. 

"They  are  framed  as  a  series  of 
questions,  directed  successively  to 
the  several  facts  in  issue,  and  num- 
bered 'first  interrogatory,'  'second 
interrogatory,' and  so  forth;  and  a 
marginal  note  is  usually  affixed  to 
each,  pointing  out  the  witness  for 
whom  it  is  intended. 

"In  framing  interrogatories  the 
same  rule  must  be  observed  as  in 
putting  questions  to  a  witness  at 
law,  viz:  they  must  not  he  leading 
or  suggestive  on  material  points; 
and  they  must  not  be  so  framed  as 
to  embody  material  facts  admitting 
of  an  answer  by  a  simple  negative 
or  affirmative,  and  thus  presenting 
to  the  court  the  evidence,  not  as  it 
would  be  stated  by  the  witness  him- 
self, but  with  the  coloring  prompted 
by  professional  skill  and  a  previous 
knowledge  of  the  case  to  be  proved. 
In  guarding  against  the  latter  of 
these  objections  a  risk  is  necessarily 
incurred  of  framing  the  question  in 
so  general  a  form  that  a  witness 
may  unawares,  or  through  misappre- 
hension, omit  an  important  fact; 
and  if  such  omission  should  occur, 
the  framer  of  the  interrogatories 
has  not,  like  an  examining  counsel 
at  msiprius,  the  opportunity  of  add- 


404 


EVIDENCE. 


[§  297. 


the  testimony  of  each  witness  being  taken  down  by  the  court 
stenographer,  or  by  the  court.  Generally,  where  this  practice 
prevails,  the  court  does  not  rule  upon  objections  to  testimony, 
but  the  objections  are  entered  by  the  stenographer  and  the 
answers  taken.    This  is  done  for  the  reason  that  upon  appeal  to 

ing  to  and  varying  his  question,  so  party  will  have  been  already  elicited 
as  to  suit  the  apprehension  of  tlie  by  the  special  interroi,'atories;  so 
witness.  Great  care  is  therefore  that  any  evidence  elicited  by  the 
requisite  in  so  framing  the  interrog-  general  one  is  likely  to  benefit  his 
atones  that  the  witness's  mind  may  adversary  rather  than  himself, 
be  led  into  the  ri«ht  channel  of  "Before  the  witnesses  are  exam- 
thought:  and  the  difhculty  of  effect-  ined,  th-*  examinmg  officer  is  gen- 
ing  this  is  muterially  diminished  if,  erally  instructed  as  to  the  interro;;ii- 
before  the  interrogatories  are  set-  tories  applying  to  each  witness, 
tied,  an  accurate  statement  is  pre-  During  the  actual  examinati'>n.  the 
pared  of  each  witness's  evidence,  examining  officer  and  the  witness 
in  the  same  manner  as  at  nisi  pr^iis.  are  the  only  persons  present,  all  third 
Beyond  these  general  principles  it  is  persons  being  strictly  excluded.  The 
impossible  to  lay  down  any  uniform  witness  is  tiien  examined  on  each 
system  for  interrogatories,  which  interrogatory  in  order,  his  answers 
must  necessarily  vary  in  every  in-  being  taken  down  on  paper,  and  is 
stance,  accoiding  to  the  circum-  not  permitted  to  read,  or  hear  read, 
stances  of  the  individual  case.  any  other  interrogatory,   until   that 

"At  the  conclusion  of  each  inter-  in  hand  be  fully  answeied. 

rogatory   the    following   words,    de-  "When  all  the  interrogatories  have 


noted  in  the  draft  by  the  words  'de- 
clare,' etc.,  are  inserted  in  the 
engrossment:  'Declare  the  truth  of 
the  several    matters   in    this   inter- 


been  gone  through,  the  deposition  is 
read  over  to  the  witness,  who.  after 
correcting  any  error  or  omi.ssion, 
signs  it.     The  affixing  of  his  si^na- 


rogatory   inquired   after,  according  ture  completes  his  examination,  and 

to  the  best  of  your  knowledge,  re-  he  cannot  be  again  examined  on  be- 

membrance  and    belief,    with   your  half  of  the  same  party. 
rea.sons  fully  and  at  large;'  and  at        "If  any  of  the  interrogatories  are 

the  end   of  the  set  the   draftsman  such  as  the  witness  is  not  bound  to 

may,  if  he  please,  add  what  is  called  answer,  e.  g.,  if  they  intend  to  ex- 

the   general    'concluding  interroga-  pose  him  to  a  penalty  or  forfeiture, 

tory,'  *Do  you  know  or  can  you  set  or  involve  a  breach  of  professional 

forth    any   other    matter    or   thing  confidence,   he   may  decline   to  au- 

which  may  be  of  benefit  or  advan-  swer  them,  stating  at  the  same  time 

tage  to  the  parties  at  issue  in  this  on  oath  his  reasons  for  so  doing;   a 

cause,  or  either  of  them,  or  that  may  proceeding  which  is  somewhat   in- 

be  material  to  the  subject  of  this  accurately  called  a  'demurrer  to  in- 

your  examination,  or  to  the  matters  terrogatories.'  The  examiner  or  com- 

in  question  in  this  cause?     If  yea,  missioner  takes  down  the  statement 

set   forth   the    same,'  etc.     The   ad-  in    writing,    and    the    objection    is 

dition,  however,  is  not  compulsory;  heard  and  decided  by  the  court.     If 

and   it  is  generally   more    prudent  the  witness  himself  does  not  object 

to  omit  it;  for,  if  due  care  has  been  to  the  question,  and  its  impropriety 

taken  in  preparing  the  evidence,  all  depends  on  general  grounds,  and  not 

matters  beneficial  to  the  examining  on  such  as  are  personal  to  himseif, 


§  298.]  EVIDENCE.  405 

the  appellate  court  all  of  the  testimony  is  certified  to  that  court 
that  it  may  have  the  whole  record.  And  so  it  has  been  fre- 
quently ruled  that  the  court  cannot  excuse  a  witness  from  tes- 
tifying upon  an  objection  to  his  testimony  on  the  ground  that 
it  is  immaterial  or  irrelevant,  or  for  any  other  cause  deprive 
the  party  of  the  testimony  offered.'  The  court  will  admit  the 
proof  subject  to  the  objections.  An  examination  of  the  stat- 
utes, codes  and  rules  of  practice  in  the  several  states  will  be 
necessary  in  order  to  determine  the  practice  as  to  the  manner 
of  taking  the  proofs  in  equity  causes. 

§  2\)H.  Practice  in  the  United  States  court. — The  practice 
in  taking  proofs  in  equity  cases  in  the  United  States  court  is 
fixed  by  statute  and  rules  of  court.  At  an  early  day  it  was 
provided  by  statute  that  the  mode  of  taking  proofs  in  cases  in 
equity  should  be  according  to  rules  then  or  thereafter  pre- 
scribed by  the  supreme  court  and  the  statutes  of  the  United 
States.-  In  pursuance  of  that  statute  the  supreme  court  of  the 
United  States  have  from  time  to  time  made  rules  of  practice 
as  to  the  ii;anner  of  taking  the  testimony  of  witnesses  in  equity 
cases  to  be  used  in  the  several  United  States  courts,  generally 
])roviding  that  the  proof  shall  be  taken  before  a  master  in 
chancery  and  reported  to  the  court  to  be  read  at  the  hearing  of 

as  where  it  involves  a  breach  of  pro-  certain  and  often  dangerous;  and  it 
fessional  confidence,  or  where  tlie  cannot  be  applied,  as  at  nisi  priu.% 
interrogatories  are  leading,  or  the  to  the  proof  of  an  independent  case, 
depositions  scandalous,  or  where  any  If  the  evidence  of  tiie  witness  is  re- 
serious  irregularity  has  occurred  in  quired  for  that  purpose  he  may  be 
taking  them,  the  court,  on  motion  examined  on  original  interroga- 
withiu  a  reasonable  time,  will  sup-  tories;  but  his  cross-examination 
press  the  depositions.  must  be  confined  to  those  points  on 
"  The  witnesses  examined  in  chief  which  he  has  been  already  examined 
by  either  party  may  be  cross-exam-  in  chief.  The  time  for  publishing 
ined  by  his  opponent;  and  the  inter-  the  depositions  is  fixed  by  the  gen- 
rogatories  filed  for  this  purpose,  eral  orders  of  the  court.  Ingle  v. 
which  are  termed  'cross-interroga-  Jones,  9  Wall.  (U.  S.)  486;  Langdell's 
tories,'  are  in  all  respects  similar  to  Eq.  PI,,  sees.  56,  58;  Wood  v.  Mann, 
the  interrogatories  in  chief,  except  2  Sumn.  (U.  S.)  316;  Kansas,  etc.  Co. 
that  they  are  not  subject  to  objec-  v.  Electric,  etc.  Co.  (U.  S.  C.  C),  108 
tions  on  the  ground  of  leading  the  Fed.  70'J. 

witness.    It  is,  however,  very  seldom  ^  Parisian  Comb  Co.  v.  Eschwege, 

that  any  good  result  is  effected  by  a  92  Fed.  721 ;  Fayerweather  v.  Ritch, 

cross-examination  in  equity;  for  it  is  89  Fed.  529;  Brown  v.  Worster,  113 

conducted  in  ignorance  of  the  ques-  Fed.  20. 

tions  in  chief,  and  therefore,  as  ap-  ^Rev.  Stats.  U.  S.,  sec.  862. 
plied  to  the  adversary's  case,  is  un- 


406 


EVIDENCE. 


[§  298. 


the  cause,  the  practice  being  similar  to  that  described  in  a  pre- 
ceding section.'  Three  months'  time  by  rule  is  allowed  to  take 
the  testimony  after  the  cause  is  at  issue,  unless  the  time  is  en- 
larged  by  the  court  on  special  motion,  and  no  testimony  taken 
after  that  time  can  be  read  to  tlie  court  on  the  hearing.  As 
soon  as  the  testimony  is  reported  and  filed  in  the  clerk's  office 
publication  thereof  may  be  ordered.^ 

On  May  15, 1893,  the  rule  governing  the  taking  of  testimony 
was  amended  by  the  supreme  court  as  follows:  "Upon  due 
notice  given  as  prescribed  by  ])revious  order,  the  court  may, 
at  its  discretion,  permit  the  whole,  or  any  specific  part,  of  the 
evidence  to  be  adduced  orally  in  open  court,  on  final  hearing.'" 
This  amendment  has  not  been  generally  adopted  and  in  some 
jurisdictions  has  been  unfavorably  commented  upon  for  the  rea- 
son that  it  was  thought  that  by  it  no  way  was  provided  for  ex- 
hibiting the  proofs  taken  orally  in  the  court  below  on  appeal  to 
an  appellate  court.* 


1  Ante,  g  297. 
■i  U.  S.  Eq.  Rule  69. 
3 149  U.  S.  793. 

*  In  Soutliern  B!dg.  &  Loan  Ass'n 
▼.  Carey.  1 17  Fed.  325.  334.  the  court 
say:  "The  nearest  analogy  my  read- 
ing develops  to  the  condition  we  have 
here  is  that  of  a  case  where  the  testi- 
mony at   the    hearing  in  equity  is 
taken  orally  in  open  court,  as  may  be 
done  if  the  court  permits  it.    Equity 
Rule  67.  last  par.igraph.    How  is  that 
testimony  to  be  taken  and  transmit- 
ted to  the  appellate  court?    Strange 
to  say,  I  do  not  find  that  question 
answered  by  the  cases  or  the  books 
on   practice  or  the  rules,  any  more 
than  the  one  we  have  in  hand,  and 
the  necessity  for  a  rule  governing 
the  practice   is  apparent.     As  said 
by  Judge  Simonton  in  Coosaw  Min. 
Co.  V.  Farmers'  Min.   Co.  (C.  C),  67 
Fed.  31,  32:  "Under  the  practice  in 
the  English  chancery,  no  testimony 
was  ever  taken  in  open  court  before 
the  chancellor.     Witnesses  were  ex- 
amined before  one  of  the  masters  in 
chancery,   and   their   testimony  re- 


duced  to  writing  and   read   at  the 
hearing."  This  is  the  common  method 
prescribed  by  our  Equity  Rule  67,  and 
when  the  testimony  is  taken  in  that 
manner,  or  before  the  examiner,  it  is 
easy  enough  to  make  a  rejected  doc- 
ument or  any  rejected  evidence  a 
part  of  the  record  by  making  it  a 
part  of  the  report  of  the  master  or 
examiner  when  he  sends  the  testi- 
mony in  for  reading  at  the  hearing, 
and  no  bill  of  exceptions  can  be  nec- 
essary.    But  suppose  the  testimony 
is   taken    under  the   latest  amend- 
ment to  Rule  67  of  May  15,  1893  (149 
U.  S.  793.  13  Sup.  Ct.,  iii;  3  Desty, 
Fed.  Prac.  1785),  how  is  it  to  be  put 
upon  the  record  for  transmission  in 
the  transcript  to  the  appellate  court? 
...     I  should  say  that  a  court  ot 
equity  might   resort  to    the    sama 
method,  or  might  require  an  exam- 
iner to  attend  and  take  it  down,  or 
one  of  the  masters,  or  in  any  con- 
venient way;  but  how,  then,  is  this 
written  testimony  to  be  made  a  part 
of  the  record,  except  by  an  order  di- 
recting it  to  be  filed  as  such,  and 


C  290.1  EVIDENCE.  407 

Chief  Justice  Waite,  in  the  opinion  of  the  court  in  Blease  v. 
Garlington,^  took  occasion  to  remark:  "We  do  not  say  that, 
even  since  the  Revised  Statutes,  the  circuit  courts  may  not  in 
their  discretion,  under  the  operation  of  the  rules,  permit  the 
examination  of  witnesses  orally  in  open  court  upon  the  hearing 
of  cases  in  equity ;  we  do  say  that  now  they  are  not  by  law  re- 
quired to  do  so,  and  that,  if  such  practice  is  adopted  in  any 
case,  the  testimony  presented  in  that  form  must  be  taken  down 
or  its  substance  stated  in  writing,  and  made  part  of  the  record, 
or  it  will  be  entirely  disregarded  here  on  an  appeal.     So,  too, 
if  testimony  is  objected  to  and  ruled  out,  it  must  still  be  sent 
here   with  the  record,  subject  to  the  objection,  or  the  ruling 
will  not  be  considered  by  us." 

This  opinion  was  rendered  prior  to  the  promulgation  of  the 
amendment  to  the  rule.  It  is  difficult  to  fully  appreciate  the 
criticisms  upon  this  amendment.  It  would  seem  that  the  prac- 
tice of  taking  proof  in  open  court  before  the  judge  who  is  to 
determine  the  cause,  thus  affording  him  the  opportunity  of 
seeing  the  witnesses  and  hearing  their  testimony,  is  but  a  needed 
advancement  and  improvement  upon  the  old  English  chancery 
rules  and  the  rules  that  obtained  in  our  court  prior  to  this 
amendment.  And  in  these  days  of  stenographers,  who  take 
the  proof  as  it  is  given  by  the  witnesses,  there  certainly  can  be 
no  difficulty  in  reporting  to  the  appellate  court  all  of  the  testi- 
mony, together  with  the  rejected  testimony  and  the  rulings 
of  the  court  upon  it. 

§  299.  Depositions  of  witnesses  beyond  the  jurisdiction.— 
In  the  several  courts,  state  and  federal,  provisions  are  made  by 
statutes  and  rules  of  court  for  taking  the  testimony  of  wit- 

whioli  would  be  the  equivalent  in  ination  is  to  be  made  a  part  of  the 

all  respects  of  a  bill  of  exceptions  record,  though  the  case  decides  that, 

embodying  the  testimony,  after  the  unless  it  is  made  a  part  of  the  record 

manner  of  the  practice  at  law?    In  and  sent  to  the  appellate  court,  no 

Blease  v.  Garlington,  92  U.  S.  1,  23  notice  can  be  taken  of  it.  See  Lloyd  v. 

L.  Ed.  521,  Mr,  Chief  Justice  Waite  Pennie(D.C.),50Fed.4,lt  Since  that 

held  that,  notwithstanding  the  acts  time  the  specific  amendmeat  of  1893 

of  congress  and  the  then   existing  to  Equity  Rule  67  has  been  adopted, 

equity  rules,  the  court  could  take  as  above  noted,  but  neither  the  rule 

the  testimony  in  an  equity  case  viva  nor  the  cases  direct  the  method  of 

voce  when    produced   in    the    open  taking    down    the    testimony    and 

court;  but  there  is  nothing  in  the  making  it  part  of  the  record." 

case  to  indicate  how  such  an  exam-  1 92  U.  S.  1,  7,  23  L.  Ed.  521. 


40S  EVIDENCE.  [§  300. 

nesses,  who  are  beyond  the  jurisdiction  of  the  court,  by  deposi- 
tion. In  the  several  state  courts  these  depositions  are  generally 
taken  upon  an  order  or  commission  issuing  out  of  the  court, 
usually  ol)tained  upon  an  order  of  course,  directed  to  some 
<jlticer  or  person,  authorizing  him  to  bring  the  witness  before 
him  by  ordinary  subpoena,  if  necessary,  and  take  his  testimony 
upon  the  written  interrogatories  attached;  or  he  may  be  au- 
thorized to  take  the  deposition  upon  oral  examination  by  the 
respective  solicitors.  Depositions  are  often  taken  Ujion  the 
stipulation  of  the  solicitors  instead  of  the  commission  or  onUr 
of  the  court.  In  the  federal  courts  acts  of  congress  and  rules 
of  court  regulate  the  practice.' 

§  300.  Admission  of  evidence. —  "While  it  is  notour  province 
to  discuss  the  rules  of  evidence  in  this  treatise,  we  may  be  per- 
mitted to  observe  that  the  rules  of  evidence  applying  to  the 
admission  of  proofs  in  actions  at  law  generally  prevail  in  the 
trial  of  equity  causes.  There  are,  however,  some  exceptions 
to  this  rule  which  are  made  necessary  because  of  the  object  of 
the  equitable  proceeding;  as,  for  example,  it  is  a  general  rule 
that  parol  testimony  is  generally  inadmissible,  both  at  law 
and  in  equity,  to  vary  a  written  instrument,  or  an  instrument 
under  seal ;  but  when  the  equitable  powers  of  the  court  are  in- 
voked to  chanije  or  annul  such  an  instrument  on  the  ground  that 
it  has  been  obtained  by  fraud  or  mistake,  the  equity  courts 
will  admit  parol  testimony  by  way  of  establishing  the  fraud 
or  mistake  and  thus  lay  the  foundation  for  the  equitable  relief 
sought. 

In  an  early  case  in  the  United  States  court  {Hunt  v.  Rous- 
mamer\  the  court  say:  "It  is  a  general  rule  that  an  agree- 
ment in  writing  or  an  instrument  carry^ing  an  agreement  into 
execution  shall  not  be  varied  by  parol  testimony,  stating  con- 
versations or  circumstances  anterior  to  the  written  instrument. 
This  rule  is  recognized  in  courts  of  equity  as  well  as  in  courts 

1  It  has  been  held  that  the  signa-  less  the  time  is  extended  by  an  order 

ture  of  a  witness  to  the  deposition  of  the  court  by  stipulation  of  the 

when  it  has  been  regularly  taken  be-  parties.     Brown  v.  Wooster,  113  Fed. 

fore  a  master  is  material.     Wallin  v.  20;  1  Foster,  Fed.  Pr.  (.3d  ed.)  634. 
Cummings,  187  111.  451,  58  N.  K  1095.        ^8  Wheat  (U.  S.)  174.  211;  Peterson 

United  States  Equity  Rule  69.  lim-  v.  Grover,    20   Me.  363;    Church    v. 

iting  the  time  in  which  testimony  Pennington,  18  Ohio  Ct.  Rep.  408,  10 

must  be  taken,  will  be  enforced  un-  Ohio  C.  D.  74 


§  301.]  EVIDENCE.  409 

of  law;  but  courts  of  equity  grant  relief  in  cases  of  fraud  and 
mistake  which  cannot  be  obtained  in  courts  of  law.  In  such 
cases,  a  court  of  equity  may  carry  the  intention  of  the  parties 
into  execution,  where  the  written  agreement  fails  to  express 
that  intention."^  And  it  has  been  held  that  courts  of  equity 
will  be  much  more  liberal  in  allowing  parol  evidence  in  such 
cases. 

§  301.  Pleadings  as  evidence.—  As  to  how  far  the  pleadings 
in  the  cause  may  be  relied  upon  as  evidence  at  the  hearing  has 
already  been  more  or  less  discussed.  The  bill  of  complaint  is 
a  deliberate  statement  of  the  complainant  of  the  facts  upon 
which  he  relies  for  the  relief  sought;  it  is  therefore  considered 
to  be  an  admission  of  the  complainant  and  may  be  read  at  the 
hearing  by  the  defendant,  especially  if  the  bill  is  under  oath, 
and  unless  the  facts  are  denied  and  the  reason  of  their  having 
been  thus  stated  is  accounted  for  upon  the  ground  of  mistake 
or  excusable  inadvertence,  they  will  be  received  as  evidence 
against  the  complainant.  But  where  allegations  were  made 
in  a  bill  of  complaint  by  mistake,  and  afterwards  an  amended 
bill  was  filed  containing  a  different  and,  as  alleged,  a  correct 
statement  of  the  facts,  it  was  held  that  the  allegations  of  the 
original  bill  would  not  be  received  against  the  complainant.^ 
It  is  a  rule,  however,  that  the  plaintiff  "  cannot  read  any  part 
of  his  own  bill  as  evidence  in  support  of  his  case  unless  where 
it  is  corroborated  by  the  answer."*  And  so  it  may  be  said  that 
where  a  document  is  for  greater  certainty  referred  to  in  a 
pleading,  the  pleader  thus  vouching  for  its  truth,  such  docu- 
ment would  stand  as  proven  as  against  the  pleader,  and  the 
facts  that  it  contains  would  be  evidence  against  him.  And 
vv^here  a  bill  which  has  been  filed  by  the  plaintiff  in  another 

lit  has  been  held  that  courts  of  tively,  are  admissions  in  favor  of  the 

equity  will  be  much  more  liberal  in  defendant   of  the  facts  so  alleged, 

allowing   parol   evidence  to  contra-  and,  therefore,  need  not  be  proved 

diet  or  control  a  written  instrument  by  other  evidence;  for,  whether  they 

in  order  to  reach  the  equities  of  a  are  true  or  not.  the  plaintiff,  by  intro- 

case  than  courts  of  law.     Stouten-  ducing  them  into  his  bill,  and  mak- 

burgh  V.  Tompkins,  9  N.  J.  Eq.  332.  ing   them   part  of  the  record,  pro- 

2Wenegar    v.  Bollenbacli,  180  111.  eludes  himself  from  afterwards  dis- 

222,  54  N.  E.  193.     As  to  statements  puting  their  truth."     1  DanL  Ch.  PU 

in  the  bill  when  taken  as  confessed  &  Pr.  (4th  ed.)  838. 
see  ante,%  101.     "The  facts  alleged        U  DanL   Ch.   PL  &  Pr.  (4th  ed.) 

in  a  bill,  where  they  are  alleged  posi-  838. 


410  EVIDENCE.  [§  302. 

suit  is  shown  to  have  been  exhibited  and  relied  upon  by  tho 
direction  or  with  the  privity  of  the  party  plaintilf,  it  may  be 
read  in  evidence  against  him.'  And  where  the  answer  is  re- 
sponsive to  the  bill  and  is  under  oath  by  reason  of  a  sworn 
answer  beinrr  demanded  by  the  bill  of  complaint,  it  is  conclu- 
sive against  the  complainant,  unless  it  is  overcome  by  the  testi- 
mony of  witnesses.  The  extent  to  which  the  answer  is  proof 
in  the  case  has  already  been  discussed.-  The  same  rule  applies 
to  other  documents,  pleadings,  or  alfidavits  of  the  parties  in 
the  cause.  Generally  it  may  be  said  that  the  party  will  be 
held  to  no  admissions  that  may  be  shown  to  have  been  made 
by  him  in  any  pleailing,  ])nper  or  document,  especially  if  it  is 
not  un<ler  otth,  or  has  not  been  relied  upon  for  the  purpose  of 
obtaining  an  inLL-rlocuiory  order  or  decree.' 

§  30*2.  The  burden  of  proof.—  It  may  be  laid  down,  as  a 
general  rule  applicable  in  equitable  actions  as  well  as  in  actions 
at  law,  that  the  point  in  issue  is  to  be  proven  by  the  party  who 
has  the  atflrmative.  As  was  said  in  Darling  v.  Ilurst*  where 
the  bill  was  filed  charging  on  information  and  belief  that  the 
transaction  in  question  was  fraudulent,  the  answer  directiv 
denying  it,  "  it  is  an  elementary  principle  for  which  no  author- 
ity need  be  cited,  that  he  who  impugns  a  transaction  as  fraud- 
ulent, which  may  or  may  not  be  so,  is  not  sustained  by  his 
own  assertion  alone  in  case  he  is  disputed,  but  has  the  burden 
on  him  to  make  his  allegation  good  by  independent  evidence."' 

Where  it  was  sought  to  divest  one  of  a  title  to  lands  resting 
upon  an  unrecorded  deed,  for  the  reason  that  by  agreement 
between  the  parties  the  deed  was  subsequently  surrendered  by 
the  grantee  to  be  canceled,  it  was  held  that  "to  divest  such 
title  on  the  grounds  mentioned  in  the  bill,  upon  parol  evidence 
alone,  the  preponderance  of  evidence  should  be  clear,  and  the 
evidence  should  be  so  convincing  as  to  leave  no  reasonable 


1 1  Danl.  Ch.  PI.  &  Pr.  (4th  ed.)  839.  responsive  to  the  allegations  of  the 

^Ante,  ^%  207,  20a  bill  cannot  be  taken  as  evidence  in 

'Galbraith   v.   Galbraith.   190   Pa.  favor  of  the  defendant.    Marmion  v, 

St  225.  42  Atl.  683;  Neldon  v.  Roof,  McClellan,  11  App.  D.  C.  467:  Ware 

55N,  J.  Eq.  608;  Bronson  V.  Vaughan,  v.  Salsbury,  80  111.  App.  485;  Corpo- 

44  W.  Va.  406;  Dexter  v.  Gordon.  11  ration,  etc.  v.  Elden,  62  N.  J.  Eq.  542, 

App.  D.  C,  60.     New  and  affirmative  50  Atl.  606. 
matter  in  an  answer  which  is  not        <  39  Mich.  765,  767. 


I    303.]  EVIDENCE.  -ill 

doubt  upon  the  mind."  ^     But  where  there  is  a  presumption  of 
law  or  fact  in  favor  of  a  party,  he  will  not  be  called  upon  to 
prove  it,  and  the  burden  of  proof  will  be  upon  the  opposite 
party  to  disprove  it,  even  thouoh  in  doing  so  he  is  called  upon 
to  prove  a  negative.     As,  for  example,  one  who  has  not  been 
adjudged,  to  be  insane  will  generally  be  presumed  to  be  sane. 
And  where  the  question  turns  on  the  legitimacy  of  a  child,  if 
a  legal  marriage  is  proved  the  legitimacy  is  presumed.     The 
law  always  presumes  good  faith  in  transactions  between  par- 
tics,  and  the  burden  of  proof  is  upon  the  party  asserting  bad 
faith.     The  law   presumes  all   men   to  deal  fairly  and  to  be 
honest,  and  it  has  been  held  that  where  a  transaction  is  capa- 
ble of  two  constructions,  one  that  it  is  fair  and  honest  and  one 
that  it  is  dishonest,  the  law  will  presume  the  transaction  hon- 
est until  the  evidence  proves  the  contrary.     And  so  it  is  pre- 
sumed that  all  men  know  the  law,  and  they  are  not  excused 
from  the  violation  of  it  upon  the  ground  of  ignorance.     And 
it  has  been  held  that  the  character  of  an  institution  of  learn- 
ing "  at  a  particular  time  may  be  established  by  evidence  of 
its  character  at  a  prior  time  not  so  remote  but  that  it  would 
be  reasonable  to  assume  that  the  prior  condition  still  exists.'"' 
§  303.  Proof  confined  to  issue  made  by  pleadings.— The 
evidence  adduced  in  the  cause  must  relate  to  the  matter  al- 
leged in  the  pleadings,  and  if  not  fairly  within  the  allegations 
that  are  well  pleaded,  it  would  be  impertinent  and  could  not 
be  made  the  foundation  of  a  decree.     The  parties  are  entitled 
to  notice  of  the  proofs  to  be  produced;  this  notice  is  given  by 
the  pleadings;  indeed,  it  is  one  of  the  objects  of  the  pleadings 
in  the  cause.     As  has  been  said,  the  complainant  is  not  re- 
quired to  state  all  of  the  facts  he  relies  upon,  but  the  substance 
of  his  cause  of  action  must  be  clearly  stated  and  the  evidence 
offered  must  clearly  relate  to  the  case  made  by  the  bill,  and  if 
proofs  not  relevant  to  the  issue  made  by  the  pleadings  are  in- 
troduced they  will  not  support  a  decree.     The  same  rule  is  ap- 
plicable to  the  answer,  or  the  facts  set  up  in  a  plea;  the  court 

1  Hunter  v.  Hopkins.  12  Mich.  227,  96  111.  App.  639;  Hunt  v.  Graham,  15 

229;  Miller  v.  United  States,  etc.  Co.,  Pa.  Super.  Ct.  42;  Henry  v.  Buddecke, 

61  N.  J.  Eq.  110.  47  Atl.  509.  81  Mo.  App.  360;  1  Danl.  Ch.  PI.  & 

•estate  V.  Chittenden.  112  Wis.  569,  Pr.  851. 
88  N.  W.  587;  Diefenthaler  v.  Hall, 


412  EVIDENCE.  [§  304. 

will  not  allow  a  party  to  be  surprised  by  the  introduction  of 
proofs  of  which  ho  has  no  notice  in  the  pleadings. 

Another  rule  applicable  to  chancery  trials  as  well  as  to  law 
cases  is,  that  the  substance  of  the  case  made  by  the  pleadings 
must  be  proven  either  by  proofs  adduced  or  by  the  admissions 
upon  the  record;  that  is  to  say,  sufficient  proof  must  be  made 
of  the  case  alleged  to  support  the  decree  prayed  for.  These 
are  general  rules;  man}"  others  might  be  noticed  as  applicable 
to  special  cases,  but  these  general  statements  will  suffice.  It 
should,  however,  be  borne  in  mind  that  courts  of  equity  are 
not  inclined  to  enforce  the  rules  of  evidence  with  that  degree 
of  strictness  which  is  generally  adhered  to  in  trials  of  actions  at 
law;  and  so  where  the  plaintiff  by  some  inadvertence,  or  even 
negligence,  has  omitted  to  prove  some  particular  fact  neces- 
sary to  the  granting  of  the  relief  prayed  for,  but  enough  ap- 
pears to  indicate  that  the  plaintiff  should  have  the  equitable 
relief,  the  court  will  allow  him  to  supply  the  defect.* 

But  in  Wagar  v.  Bowley!^  where  defendant  sought  to  open  a 
cause  for  further  proof,  but  failed  in  his  petition  to  point  out 
what  the  testimon}"  sought  to  be  olfered  would  show,  it  was 
held  that  although  it  is  generally  within  the  discretion  of  a 
trial  judge  to  open  a  cause  for  further  proof  at  any  time  be- 
fore decree,  and  such  discretion  will  not  be  reviewed  where 
the  power  exists  except  in  cases  of  abuse,  it  was  an  excess 
of  power  to  open  the  case  and  the  application  should  be  re- 
fused, that  the  petition  ought  not  to  have  been  granted,  and 
the  granting  of  it  was  an  abuse  of  the  power  of  the  court. 

§  304.  Effect  of  variance. —  It  is  a  general  rule  that  the 
case  must  be  proved  as  alleged  in  the  pleadings,  and  so  where 
the  complainant  failed  to  raise  the  question  by  proper  allega- 
tions in  his  bill  as  to  the  correctness  of  a  receipt,  the  court 
held  that  the  replication  simply  put  in  issue  the  truth  of  the 
plea,  and  that  being  established,  the  dismissal  of  the  bill  nec- 
essarily followed;  that  the  claim  of  a  mistake  in  the  receipt 
was  wholly  foreign  to  the  issue  raised  by  the  pleadings  for  the 
determination  of  the  court  and  could  not  be  allowed.'     But 

1 1  Danl.  Ch.  PI.  &  Pr.  (4th  ed.)  857.  2  Mich.  145.     In  Smith  v.  Brown,  3 

2 104  Mich.  38,  41.  Mich.    161,    164,   in  discussing  a  de- 

3  Horn   V.  Detroit   Dry   Dock   Co.,  fense  urged   by  counsel,  the  court 

150  U.  S.  610;  Van   Dyke   v.    Davis,  say:  "However  good  such  a  defense 


§  304.] 


EVIDENCE. 


413 


where  it  clearly  appears  at  the  hearing  that  the  complainant 
is  entitled  to  relief,  but  has  stated  his  case  defectively,  a  court 
of  equity  will  allow  the  bill  to  be  corrected  so  as  to  admit  the 
proofs  adduced  and   base  a  decree  upon  them.     If  it  would 
ia  no  way  prejudice  the  substantial  rights  of  the  defendant  or 
the  opposite  party,  such  an  amendment  is  allowed  in  the  dis- 
cretion of  the  court,  and  for  the  reason  that  equity  imd  good 
conscience  demand  it.     And  so  in  such  a  case  a  bill  of  com- 
plaint would  not  be  dismissed  for  the  technical  reason  that  there 
was  a  variance  between  it  and  the  proofs  adduced,  but  rather 
the  court  would  permit  the  bill  to  be  amended  so  as  to  corre- 
spond with  and  admit  the  proofs  made.^    But  where  an  amend- 
ment of  the  pleadings  would  require  a  different  character  of 
evidence  to  support  the  issue  made  on  account  of  it  from  that 
required  by  the  original  pleadings,  as  where  the  amendment 
would  convert  an  action  in  equity  into  an  action  at  law,  it  will 
not  be  granted.^ 

niight  have  been,  bad  it  been  set  up  upon  such  showing  must  fail.  War- 
in  L  answer,  it  is  sufficient  to  say  ner  v.  WlnttaUer  6  M,ch.  US   PecL- 
that   it  is  not   put   in  issue  by  the  ham  v.  Buffam.  11  M^^h.  529.  Cove. 
plead,n.s.      It  .s  a  well  established  v.  Cole.    16    M.ch    223;   Bloomer   v. 
and  most  salutary  rule  of  the  court  Henderson,  8  M.ch.  395 
of  chancery   to    found    its   decrees  >  Gnrham  v.  Wmg    10  M  ch    486 
upon  some  matter  put  in  issue  be-  Church    v.    Holcomb.   4a    M>ch.    29 
tween  the  parties   by   the   bill    and  ante,^2AG.     In  Logg.e  v   Chandler 
answer             .    A  defendant  cannot  95  Me.  2.'0.  49  Atl.   1059.  it  was  held 
beallowedthusto  depart  from  the  that  where  no  demurrer  was  mter- 
defense  set   up  in    his  answer,  and  posed    the  court   might   proceed  to 
avail    Ivimself  of  another,    however  consider    what    equitable    relief,   if 
clearly  he  may  be  able  to  establish  any,  the  plaintiffs  were  entitled  to, 
it     It  would  operate  as  a  surprise  and  that  if  relief  was  found  to  be 
upon  the  complainant,  and  he  could  due  them    the    court    could   grant 
not  be  prepared  to  meet  it."     Cicotte  permission  to  formulate  the  claim 
V  (-p-nier  2  Mich.  381.    In  Harnng-  therefor  upon  such  terms  as  would 
ton  v^ Brewer.  56  Mich.  301.  it  was  fully  compensate  the  respondent  for 
held  that  where  the  evidence  estab-  any  inconvenience  suffered  from  its 
lishes  an  entirely  different  case  from  omission  in  the  first  instanca 
that  which  is  set  up  in  the  answer,  ^  Burnham  &  Co.  v.  TiUery  &  Ca, 
the    defense,   so    far  as   it  depends  85  Mo.  App.  453. 


CHAPTEF.  XIII. 


THE  HEARING. 


§  305.  Bringingthe  cause  to  hearing. 

306.  Demurrer. 

307.  Tlie  plea. 

308.  Hearing  on  bill  and  answer. 

309.  Hearing  on  bill,  answer  and 

replication. 

310.  Final    hearing  on    pleadings 

and  proofs. 

311.  Matters  disposed  of  at  the  final 

hearing. 

312.  Conflict  in  state  and  federal 

jurisdictions. 


§  313.  Objections  to  the  hearing. 

314.  A  feigned  issue. 

315.  Submission    of  facts   to  jury 

discretionary  with  court. 

316.  Effect  of  the  verdict  or  find- 

ings of  the  jury. 

317.  Instructions  to  jury,  or  order 

as  to  verdict  not  subject  for 
exceptions. 

318.  The  court's  determination  at 

the  hearing. 


§305.  Bringing  the  cause  to  hearing.— When  the  cause, 
in  accordance  with  the  rules  and  practice  of  the  court  in  which 
it  is  pending,  is  at  issue,  it  is  ready  for  hearing,  whether  it 
be  upon  an  issue  made  by  a  demurrer  to  the  bill,  or  a  plea, 
or  an  answer,  or  an  answer  and  replication.  It  is  brought 
on  for  hearing  by  being  set  down  to  be  heard,  or  by  notice,  or 
by  reason  of  its  being  regularly  on  the  docket  of  the  court 
from  which  it  will  be  called  in  its  order,  depending,  of  course, 
upon  the  practice  adopted  and  prevailing  in  the  court  in  which 
the  case  is  pending. 

A  discussion  of  the  early  English  practice  of  bringing  causes 
to  hearing  would  not  be  profitable  here  for  it  has  long  since 
been  abandoned.^  The  practice  in  the  courts  of  the  United 
States  can  hardly  be  said  to  be  uniform  throughout  the  sev- 
eral circuits, —  "some  circuits  foUowinof  the  analowv  of  the 
English  practice;  some  regulating  the  matter  by  rule,  and 
some  adopting  by  custom  a  practice  very  similar  to  that  of 
the  courts  of  the  state  where  the  circuit  is  held.  Calendar 
practice  in  the  several  circuits  is  usually  modeled  on  the  state 


'  For  a  discussion  of  the  early  practice  in  England  in  bringing  causes  to 
hearing,  see  2  Danl.  Ch.  PI.  &  Pr.  (4th  ed.)  917. 


THE    HEARING.  415 


§  306.] 

practice  in  that  respect."  '     For  an  understanding  of  the  prac 
tice  prevailing  in  the  several  circuits,  it  is  necessary  to  con- 
suit  the  rules  of  practice  adopted  by  them.     The  practice  is 
not  uniform  in  the  state  courts.     In  some  of  the  states  where 
a  code  of  practice  has  been  adopted,  the  cases  are  docketed  in 
the  clerk's  office  when  the  issue  is  made  up  by  the  pleadings, 
and  the  case  is  ready  to  be  heard,  and  from  this  docket  the 
causes  are  called  by  the  judge  presiding  at  the  terra  of  court, 
and  counsel  are  expected  to  be  ready  for  hearing  when  the 
case  is  reached,  or  show  sufficient  cause  for  continuing  the  same 
until  the  next  regular  term  of  the  court.     In  other  jurisdictions 
the  cases  when  they  are  at  issue  must  be  noticed  for  hearing 
on  the  opposite  party  or  his  solicitor  a  certain  number  of  days 
before  the  first  day  of  the  term  as  provided  by  rule,  and  notice 
must  be  given  to  the  clerk  or  register  of  the  court,  with  proof 
of  service  of  notice  of  hearing  upon  the  opposite  party  or  his 
solicitor.     When  this  is  done,  the  clerk  will  put  the  case  upon 
the  court  calendar  for  hearing  at  the  term  for  which  it  is  no- 
ticed, and  from  this  calendar  the  court  will  call  the  case  when 
it  is  reached.     In  those  jurisdictions  where  causes  are  brought 
on  by  notice  of  hearing,  either  party  may,  when  the  cause  is 
at  issue,  notice  it  for  hearing. 

§  306.  Demurrer.— When  the  defense  is  by  demurrer,  the 
hearing  is  brought  on  in  the  same  manner  as  mentioned  in  the 
preceding  section,  and  when  the  cause  is  reached  it  is  argued 
by  counsel  for  the  respective  parties.  As  we  have  already 
seen,  no  proofs  are  taken  or  submitted  upon  such  a  hearing; 
the  case  proceeds  upon  the  theory  that  every  well-pleaded  al- 
legation of  fact  in  the  bill  of  complaint  is  true,  but  that,  admit- 
ting all  these  facts  to  be  true,  the  defendant's  contention  is 
that  the  plaintiff  cannot  recover.  So  upon  the  hearing  of  a 
demurrer  the  court  will  not  take  into  consideration  any  facts 
except  those  alleged  in  the  bill  of  complaint,  or  the  pleading 
to  which  the  demurrer  is  directed.  The  order  or  decree  that 
follows  such  a  hearing  has  already  been  discussed.^ 

The  demurrer  forms  an  independent  issue,  and  is  in  no  way 

11  Foster's  Fed.  Pr.  (3d  ed.)  664,  or  in  which  the  execution  of  the 

"  By  statute,  a  preference  is  given  in  revenue  laws  of  a  state  is  enjoined." 

all  circuits  and  in  the  supreme  court  '^Ante,  §§  129,  etc. 
to  actions  in  which  a  state  is  a  party 


4:10  THE    HEAKINO.  [§  307. 

connected  with  the  hearing  of  the  cause  upon  the  merits  or 
upon  the  facts,  except  the  facts  alleged  in  the  bill.  Indeed, 
it  alleges  that  tliere  are  no  merits  or  equities  upon  which  the 
complainant's  bill  can  rest.  A  demurrer  stands  as  a  l)arrier 
to  any  further  proceedings;  nothing  can  be  done  in  the  case 
until  it  is  disposed  of.  It  is  generally  conceded  to  be  a  cal- 
endar cause  to  be  heard  when  reached,  and  so  should  be  properly 
noticed  the  same  as  any  other  case  at  issue,  and  called  by  the 
ccnirt  when  reached.  It  is  an  issue  of  law,  and  at  the  hearing 
nothing  remains  to  be  done  except  to  argue  the  issue  thus 
made  by  the  pleadings. 

§307,  The  plea.— By  a  plea  the  defendant  mny  raise  an 
issue  of  law,  or  an  issue  of  law  and  fact,  the  issue  being  indi- 
cated anil  understood  by  the  nature  and  substance  of  the  plead- 
ing. The  questions  of  fact,  as  we  have  seen,  are  raised  by  the 
replication  of  the  phuntilT  to  the  plea.  If  the  issue  is  raised  by 
a  replication,  the  truth  or  falsity  of  the  facts  alleged  by  the 
plea  are  involved,  and  upon  this  issue  proofs  must  be  taken. 
In  those  jurisdictions  where  proofs  may  be  taken  in  open  court 
upon  the  hearing,  the  issue  raised  by  a  plea  and  replication 
upon  proper  notice  may  be  heard  on  proofs  taken  in  open  court 
as  in  a  trial  at  law,  and  this  perhaps  is  the  practice  in  the 
greater  number  of  jurisdictions;  but  in  some  courts  the  earlier 
practice  of  referring  all  matters  involving  the  taking  of  proofs 
to  a  commissioner  or  master  still  prevails,  and  in  those  courts 
the  case  is  referred  to  a  master  or  commissioner  with  directions 
to  take  the  proofs  and  report  to  the  court,  and  until  the  [)roofs 
are  so  taken  the  case  is  not  ready  for  hearing,  but  when  the 
proofs  are  taken  and  reported  the  case  may  be  noticed  and 
heard  upon  the  ])roofs  so  reported.  The  order  of  reference  is 
o-eneralh'  an  order  of  course.  If  no  replication  is  filed  to  the 
plea,  then,  as  we  have  seen,  the  facts  alleged  in  the  plea  are 
admitted  to  be  true  and  the  case  may  be  noticed  for  hearing 
and  be  heard  upon  the  facts  so  alleged.^ 

1  Ante.  §§  179,  etc.     Where  after  a  and  bring  the  case  on  for  final  hear- 

p'ea  has  been  filed  to  the  bill  and  set  in^,  the  decree  will  not  be  reversed 

down  for  argument  the  parties  fail  unless  there  is  error  on  the  merits. 

to  bring  it  on  for  hearing,  but  take  Stackpole  v.  Hani;ock,  40  Fla.  362,  24 

testimony  as  to  the  merits  of  the  plea  So.  914 


§§  308,  309.]  THE    HEARING.  417 

§  ;I0S.  Hearing  on  bill  and  answer.— The  hearing  on  bill 
and  answer  has  already  been  somewhat  discussed.^  Whenever 
the  plaintiff  desires  to  admit  the  facts  that  are  alleged  and 
well  pleaded  in  the  answer,  and  insist  that  upon  these  facts  the 
plaintiff  is  entitled  to  the  relief  prayed  for  in  the  bill,  or  to 
some  part  of  it  which  satisfies  his  object  in  filing  the  bill,  he 
may  omit  the  filing  of  a  replication  and  at  once  notice  the 
cause  for  hearing  on  bill  and  answer.  Or,  if  the  plaintiff  omits 
within  the  time  allowed  him  to  file  a  replication,  the  defendant 
may  notice  the  case  for  hearing  on  bill  and  answer.  And 
where,  after  a  replication  had  been  filed,  and  more  than  ninety 
days  bad  elapsed  after  the  filing  of  the  replication  without 
taking  any  testimony,  and  the  plaintiff  did  not  move  to  extend 
the  time  for  the  taking  of  testimony,  and  thereafter  gave  notice 
of  motion  to  strike  out  certain  portions  of  the  answer,  which 
motion  was  denied,  it  was  held  that  the  case  was  properly  set 
down  for  hearing  on  bill  and  answer.^ 

U|)on  the  hearing  of  the  cause  upon  bill  and  answer,  all  the 
facts  alleged  and  well  pleaded  in  the  answer  for  the  purposes 
of  the  hearing  are  taken  to  be  true.'  And  where  the  defend- 
ant demurred  to  a  portion  of  the  bill  and  filed  an  answer  to  a 
portion  raising  questions  of  fact  and  the  demurrer  was  sus- 
tained, the  plaintiffs  electing  to  stand  by  their  bill,  it  was 
held  that  the  defendant  was  entitled  to  have  the  case  set  down 
for  hearing  on  the  questions  raised  by  the  answer.*  It  is  said 
that  the  failure  to  reply  to  the  answer  is  in  the  nature  of  a 
demurrer  to  the  answer,  and  the  case  at  the  hearing  will  be 
governed  upon  the  facts  alleged  in  it.' 

§  300.  Hearing  on  bill,  answer  and  replication.—  Where 
the  plaintiff  has  filed  a  replication  after  an  answer  made  by 
the  defendant,  but  has  obtained  no  order  nor  given  any  notice, 
as  the  practice  requires  for  the  taking  of  proofs  in  the  cause, 

I  Ante,  ^2'i8.  626;    Martin  v.  Reese    (Tenn.,   1899X 

2McGorray  v.  O'Connor,  31  U.  8.  C.  57  S.  W.  419. 

C.  A..  114,  87  Fed.  586;  Welsbaoh  Lt.  »  United  States  v.  Freight  Ass'n,  7 

Co.  V.  Mahler.  88  Fed.  427.  C.  C.  A.  15,  19,  58  Fed.  58,  24  L.  R  A. 

s  Roach  V.  Glos,  181  111.  440,  54  N.  73;    Bank   v.    Hemphill,   7   Ga.   396; 

E.  10:^2.  Scott  V.   Cook,  20  Ky.  (4  !\Ion.)  280; 

*  Brewster  v.   Cahill,  81  IIU  App.  Doolittle  v,  Gookin,  10  Vt.  265;  Cocke 

V.  Minor,  25  Grat.  (Va.)  246. 
27 


418  THE    iiKAKlxNG.  [§  310. 

within  the  time  requiretl,  the  opposite  party  may  notice  or  sut 
the  case  down  for  hearing  on  bill,  answer  and  replication,  and 
the  case  will  proceed  without  the  proofs.  Or,  if  there  are  ex- 
hibits attached  to  and  made  part  of  the  plead in<,^s,  the  hearing 
will  proceed  upon  bill,  answer,  replication  and  exhibits  so  at- 
tached. It  seems  to  be  the  prevailing  rule  that  in  such  case 
the  cause  will  be  heard  as  though  there  was  a  waiver  of  the 
replication,  and  as  though  it  stood  for  hearing  on  bill  and 
answer.' 

In  Re  Sterr's  Estate'^  the  court  say:  "In  general,  the  op- 
eration of  a  replication  is  to  put  the  respondent  to  proof  of  the 
allegations  in  the  answer  not  resj)onsive  to  the  petition,  but 
set  up  by  way  of  confession  and  avoidance.  But  where,  with- 
out affording  the  defendant  an  opportunity  to  substantiate  his 
answer  b}'  proof,  the  plaintilf  sets  down  the  cause  for  hearing 
on  bill,  answer  and  replication,  the  effect  is  the  same  as  if 
heard  on  bill  and  answer  alone,  and  the  answer  will  be  taken 
as  true  in  every  point."  And  where  a  cause  was  set  down  for 
hearing  on  bill  and  exhibits,  it  was  held  "  that  the  whole  of  the 
answer  must  be  considered  as  true.'" 

§  310.  Final  liearing  on  pleadings  and  proofs. —  The  final 
hearing  of  the  cause  may  be  upon  the  pleadings  and  proofs 
taken  before  a  commissioner  or  master  in  ch;incery  and  his 
report  of  the  same,  where  that  practice  of  taking  proofs  ob- 
tains, or  u|.on  pleadings  and  proofs  in  open  court  in  jurisdic- 
tions where  that  practice  prevails.  In  some  jurisdictions  where 
it  is  the  practice  to  take  the  proofs  in  tlie  cause  before  a  commis- 
sioner or  master  in  chancery,  it  is  usual  for  counsel,  upon  the 
hearmg,  to  make  a  brief  statement  of  the  case  as  set  out  bv  the 
pleadings,  exhibiting  the  issue  that  is  to  be  tried  and  the  evidence 
that  has  been  adduced  and  bears  upon  those  issues.  And  in  some 
of  those  courts  it  is  provided  by  rule  that  counsel  for  the  com- 
plainant shall  make  and  submit  to  the  court  an  Jibstract  of  tho 
proofs  showing  the  evidence  relied  upon  to  substantiate  his 
theory  of  the  case.  This  rule  applies  as  well  to  the  defendant 
when  a  defense  is  offered.     Generally  upon  the  hearing  the 

1  Wiser  V.   Blachly,    1   Johns.    Ch.  2 13  Phil.  Rep.  212,  213;  Wilkinson 

607;  United  States  v.  Fera;uson.  54  v.  Bauerle,  41  N.  J,  Eq.  635,  7  Atl.  514. 

Fed.  28;    McGorray  v.   O'Connor,  31  ^  Leeds  v.  Insurance  Co.,   15  U.  & 

U.  S.  a  C  .A.  114,  87  Fed.  58a  (2  Wheat.)  380,  384. 


§  310.]  THE    HEARING.  419 

proofs  are  read  by  counsel  or  by  a  clerk  employed  for  that 
purpose,  the  plaintiff  first  submitting  the  proofs  taken  upon 
his  side  of  the  case,  the  defendant  submitting  those  taken  by 
him,  and  the  plaintiff  presenting  those  taken  in  rebuttal. 
After  the  proofs  are  read  and  submitted,  counsel  for  the  re- 
spective parties  are  heard  in  the  argument  of  the  cause,  coun- 
sel for  the  plaintiff  having  the  opening  and  the  closing  argu- 
ment. 

It  is  generally  required  in  the  United  States  court  that  coun- 
sel shall  also  submit  an  argument  in  writing  at  the  close  of  his 
oral  argument,  briefly  citing  the  proofs  and  the  law  relied 
upon  in  support  of  his  contention.  When  the  proofs  in  the 
cause  are  taken  in  open  court,  the  hearing,  or  trial,  proceeds 
as  in  a  trial  of  a  suit  at  law,  the  plaintiff  calling  his  witnesses 
and  having  them  sworn  and  examined  in  open  court,  the  de- 
fendant submitting  his  testimony  in  the  same  manner,  counsel 
presenting  at  the  time  any  documentary  evidence  that  may 
have  a  bearing  upon  the  case.  If  objections  to  any  of  the  tes- 
timony, or  to  any  documentary  proof  offered,  is  made  by  either 
counsel  during  the  taking  of  the  evidence  or  the  examining  of 
witnesses,  the  objection  is  noted  by  the  court,  or  by  the  court 
stenographer;  but  the  court  cannot  exclude  the  testimony  for 
the  reason  that  the  counsel  offering  the  proof  has  the  right  to 
have  his  offer  of  evidence  and  the  answer  of  the  witnesses,  or 
the  document  offered,  brought  before  the  appellate  court  in 
the  record  in  case  the  cause  is  appealed.^ 

In  discussing  the  practice  in  this  respect  Mr.  Chief  Justice 
Champlin,  in  Meech  v.  Lee^-  used  this  language:  "The  circuit 
judge,  in  cases  of  this  character,  has  no  authority  to  absolutely 
reject  testimony,  unless  it  is  of  a  nature  so  scandalous  as  not 
to  be  proper  to  appear  in  the  record  of  the  proceedings.  He 
cannot  reject  testimony  upon  the  objection  that  it  is  irrele- 

'  In  Hewlett  v.  Shaw,  9  Mich.  346,  der   his    statutory   right  of  appeal 

the  cause  liaving   gone  to   trial  in  effectual.     And    in  Bilz   v.   Bilz,  37 

open  court  on 'an  issue  of  fact,  the  Mich.  116,  it  was  held  that  all  testi- 

judge   refused   to  receive   evidence  mony  offered   should    be   admitted, 

and  dismissed  the  bill  for  want  of  and  if  admitted  subject  to  objection, 

equity.    Held,  that  the  dismissal  was  an  appeal  from  the  ruling  thereon 

erroneous:  the  complainant  was  en-  brings  up  the  whole  testimony, 

titled  of  right  to  put  in  his  evidence,  ^82  Mich.  274,  284. 
since  in  no  other  way  could  he  ren- 


420  THE    HEARING.  [§  311. 

vant  and  immaterial.  He  may  rule  upon  it,  but  the  testimony 
must  be  taken  and  returned,  and  this  for  the  reason  that  the 
supreme  court  is  in  equity  an  appellate  court  and  has  a  right 
to  pass  upon  all  the  testimony,  as  well  as  upon  the  rulin,f,^s  of 
the  circuit  judge.  If  testimony  is  forced  into  a  case  which  is 
evidently  irrelevant  and  immaterial,  a  motion  may  be  made 
to  expunge  it,  and  the  court  may  order  it  expunged  with  costs 
against  the  solicitor  insisting  upon  its  being  taken;  but  it 
must  be  returned  to  this  court,  in  order  that  we  may  pass  upon 
the  correctness  of  the  ruling." 

In  Merson  v.  Merson^  Mr.  Justice  Montgomery  said:  "On 
appeal  a  case  is  tried  de  novo,  and  the  appellate  court  is  ex- 
pected to  have  the  benefit  of  all  offered  testimony.  The  only 
exceptions  to  this  rule  are  when,  on  grounds  of  public  policy, 
the  testimony  should  not  be  permitted  to  be  elicited,  as  in  case 
of  a  flagrant  attempt  to  disre^^ard  the  privilege  of  witnesses, 
or  where  it  becomes  necessary  to  fix  a  reasonable  limit  to  the 
number  of  witnesses  called  to  a  single  point,  as  in  case  of  an 
attempted  impeachment.  But  ordinarily  the  offered  testimony 
should  be  taken  subject  to  objection."  At  the  conclusion  of  the 
proofs  the  cause  is  argued  by  counsel;  counsel  for  the  plaintiff 
having  the  opening  and  closing. 

§  311.  Matters  disposed  of  at  the  final  hearing. —  All  in- 
terlocutory orders  or  decrees  that  have  been  obtained  during 
the  pendency  of  the  cause  — as,  for  example,  preliminary  in- 
junctions, orders  for  appointment  of  receivers,  for  the  pay- 
ment of  money,  or  orders  or  interlocutory  decrees  that  in  any 
way  affect  the  parties,  or  any  of  them,  at  the  final  hearing  of 
the  cause — are  finally  considered  and  disposed  of.  The  pre- 
liminary injunction  may  be  made  perpetual  or  it  may  be  dis- 
solved, the  receiver  discharged  upon  settlement  of  his  trust, 
and  the  funds  or  property  in  his  hands  turned  over  to  the  par- 
ties to  whom  they  equitably  belong.  But  it  may  be  necessar}' 
to  continue  a  receiver  even  after  the  hearing,  for  the  carrying 
out  of  some  interlocutory  order,  or  to  hold  the  same  until  the 

1 101  Mich.  55,  59.     Where  the  de-  bill  which  are  not  denied  in  the  an- 

fendant  does  not  insist  upon  a  hear-  swer  and  the  findings  of  fact  made 

ing  on  bill  and  answer,  but  proceeds  by  the  reference.     Dudley  v.  East- 

to    trial    after  reference,   the    case  man,  70  N.  H.  418,  50  Atl.  101. 
stands  on  the  facts  alleged  in  the 


§  312.]  THE    HEARING.  421 

happening  of  some  event  which  is  necessar}^  to  fully  and 
finally  dispose  of  the  controversy,  the  court  making  its  decree 
or  determination  settlin":  fully  the  rights  of  the  parties,  deter- 
minino-  what  shall  be  done  with  reference  to  the  unsettled 
matters  which  are  often  referred  to  a  commissioner  or  master, 
and  ordering  that  when  the  object  for  which  the  interlocutory 
order  is  allowed  to  run  has  been  accomplished  according  to  the 
terms  of  the  decree,  the  decree  shall  be  final.  But  usually  all 
matters  of  controversy  and  dispute  are  settled  and  determined 
at  the  hearing,  and  a  decree  made  adjudging  the  rights  and 
privileges  of  the  parties,  and  finally  disposing  of  the  cause. 

§312.  Conflict  in  state  and  federal  jurisdictions.— The 
jurisdiction  of  the  state  and  federal  courts  is  quite  distinct,  but 
there  is  sometimes  more  or  less  conflict.  While  the  federal  courts 
have  always  recognized  that  there  is  a  certain  comity  due  to 
the  decisions  of  state  courts,  and  have  generally  felt  bound  to 
respect  the  decisions  of  those  courts,  and  from  the  time  they 
were  made  have  regarded  them  as  conclusive  in  all  cases  upon 
the  construction  of  their  own  constitution  and  laws,  they  have 
refused  to  surrender  their  own  judgment  to  decisions  made  in  a 
state  and  declare  contracts  to  be  void  which,  upon  full  consid- 
eration, they  have  declared  to  be  valid.'  As  was  said  by  Chief 
Justice  Taney,  "  We  ought  not  to  give  them  a  retroactive  effect 
and  allow  them  to  render  invalitl,  contracts  entered  into  with 
citizens  of  other  states  which  m  the  judgment  of  this  court 
were  lawfully  made.  For  if  such  a  rule  were  adopted,  and  the 
comity  due  to  state  decisions  pushed  to  this  extent,  it  is  evi- 
dent that  the  provision  in  the  constitution  of  the  United 
States  which  secures  to  the  citizens  of  another  state  the  right 
to  sue  in  the  courts  of  the  United  States  might  become  utterly 
useless  and  nugatory."'-^ 

Chief  Justice  Waite,  in  Douglass  v.  County  of  Pike^  said: 
"The  true  rule  is  to  give  a  change  of  judicial  construction  in 
respect  to  a  statute  the  same  effect  in  its  operation  on  con- 
tracts and  existing  contract  rights  that  would  be  given  to  a 
legislative  amendment;  that  is  to  say,  make  it  prospective,  but 
not  retroactive.   After  a  statute  has  been  settled  by  judicial  con- 

1  Rowan  v.  Runnels,  5  How.  (U.  S.)        2  Rowan  v.  Runnels,  5  How.  (U.  S.) 
134,  139:  Douglass  v.  County  of  Pike,     134. 
101  U.  S.  677,  686.  » 101  U.  S.  677,  687. 


422  THE    HEARING.  [§  313. 

struction,  the  construction  becomes,  so  far  as  contract  rights 
acquired  under  it  are  concerned,  as  much  a  part  of  tlie  statute 
as  the  text  itself,  and  a  change  of  decision  is  to  all  intents  and 
purposes  the  same  in  its  effect  on  contracts  as  an  amendment 
of  the  law  by  means  of  a  legislative  enactment." 

It  has  been  held  without  dissent  "that  the  title  to  land  can 
be  acquired  and  lost  only  in  the  manner  prescribed  by  the  law 
of  the  place  where  such  land  is  situate." ' 

In  Brine  v.  Insurance  Co}  the  supreme  court  of  the  United 
States  in  their  opinion  say:  "It  would  seem  that  no  argument 
is  necessary  to  establish  the  proposition  that  when  substantial 
rights,  resting  upon  a  statute,  which  is  clearly  within  the  leg- 
islative power,  come  in  conflict  with  mere  forms  and  modes  of 
procedure  in  the  courts,  the  latter  must  give  way  and  adapt 
themselves  to  the  forms  necessary  to  give  effect  to  such  rights. 
The  flexibility  of  chancery  methods,  by  which  it  molds  its  de- 
crees so  as  to  give  appropriate  relief  in  all  cases  within  its 
jurisdiction,  enables  it  to  do  this  without  violence  to  principle. 
If  one  or  the  other  must  give  way,  good  sense  unhesitatingly 
requires  that  justice  and  positive  rights,  founded  both  on  valid 
statutes  and  valid  contracts,  should  not  be  sacrificed  to  mere 
questions  of  mode  and  form." 

In  Stutsman  County  v.  Wallace^  the  court  say:  "It  is  well 
settled  that  upon  the  construction  of  the  constitution  and  laws 
of  a  state,  this  court,  as  a  general  rule,  follows  the  decisions  of 
her  highest  court,  unless  they  conflict  with  or  impair  the 
efficacy  of  some  provision  of  the  federal  constitution  or  of  a 
federal  statute  or  a  rule  of  general  commercial  law."  And  so 
it  may  be  said  that  when  a  statute  of  the  state  which  is  claimed 
to  be  a  contract  is  involved  in  a  cause  pending  in  the  federal 
court,  that  court  will  construe  it  irrespective  of  any  construc- 
tion put  upon  it  by  the  state  court.* 

§  ;]13.  Objections  at  the  hearing. —  Objections  to  the  form 
or  substance  of  the  bill,  or  objections  which  go  to  defeat  the 
object  of  it,  may,  as  we  have  seen,  be  raised  by  demurrer  or 
by  plea,  and  generally  should  be  so  presented  and  not  left  to 
be  raised  for  the  first  time  at  the  hearing.     There  are  certain 

1  United  States  v.  Crosby,  7  Cranch        >  142  U.  S.  293,  306. 

(U.  S.),  II").  *  Thompson  v.  Perrine,  103  U.  S, 

2  96U.  S.  627,  634»  80a 


§  314.]  THE    HEARING.  423 

objections  that  should  be  taken  advantage  of  by  demurrer 
and  will  not  be  considered  if  raised  for  the  first  time  at  the 
hearing;  as,  for  example,  objections  to  the  form  of  the  bill,  or 
objections  as  to  parties,  if  the  cause  can  proceed  to  a  final  de- 
cree without  them,  and  without  afifecting  their  rights  or  inter- 
ests, or  the  rights  or  interests  of  others  in  the  controversy. 
But  the  liberal  statutes  allowing  amendments  in  force  in  most 
jurisdictions  give  the  courts  great  latitude,  as  we  have  seen, 
in  preserving  the  equities  of  all  interested  parties,  and  it  would 
be  difficult  to  point  out  any  omission  as  to  matter  of  substance 
where  the  court  w^ould  not  allow  an  amendment  even  at  the 
hearing  if  to  recognize  it  and  grant  it  would  meet  the  demands 
of  justice,  whether  it  be  an  amendment  to  the  pleadings  or  the 
taking  of  further  proofs  or  the  giving  of  further  time  where 
no  great  laches  had  been  indulged  in.  These  questions  are 
governed  by  the  broad  and  equitable  discretion  of  the  court  of 
equity;  but  after  the  issue  has  been  submitted,  the  indulgence 
of  the  court  is  not  so  readily  granted.' 

§  314.  A  feigned  issue. —  Courts  of  equity  have  always  as- 
sumed the  right  in  their  discretion  to  submit  certain  questions 
of  fact  to  a  jury  for  their  verdict  or  answers.  Formerly  this 
was  done  by  making  up  a  feigned  issue.  The  origin  of  the 
feigned  issue  and  its  early  practice  in  the  English  court  is 
given  us  by  Blackstone  in  his  Commentaries  as  follows:  "It 
very  seldom  happens  that  the  first  decree  can  be  final,  or  con- 
clude the  cause;  for,  if  any  matter  of  fact  is  strongly  contro- 
verted, this  court  is  so  sensible  of  the  deficiency  of  trial  by 
written  depositions  that  it  will  not  bind  the  parties  thereby, 
but  usually  directs  the  matter  to  be  tried  by  jury;  especially 
such  important  facts  as  the  validity  of  a  will,  or  whether  A.  is 
the  heir  at  law  to  B.  .  .  .  But,  as  no  jury  can  be  sum- 
moned to  attend  this  court,  the  fact  is  usually  directed  to  be 
tried  at  the  bar  of  the  court  of  king's  bench,  or  at  the  assizes, 
upon  a  feigned  issue.  For  (in  order  to  bring  it  there,  and  have 
the  point  in  dispute,  and  that  only,  put  in  issue)  an  action  is 
brought,  wherein  the  plaintiff  by  a  fiction  declares  that  he  laid 
a  wager  of  five  pounds  with  the  defendant  that  A.  was  heir 
at  law  to  B. ;  and  then  avers  that  he  is  so,  and  therefore  de- 

1  Gubbins  v.  Laughtenschlager,  75  Fed,  615.    See  ante,  §§  250-252. 


424  THE    HEAEING.  [§  314. 

niands  the  five  pounds.  The  defendant  admits  the  feigned 
wager,  but  avers  that  A.  is  not  the  heir  to  B, ;  and  thereupon 
that  issue  is  joined,  which  is  directed  out  of  chancery  to  be 
tried;  and  thus  the  verdict  of  the  jurors  at  law  determines  the 
fac'u  in  the  court  of  equity."  ' 

But  that  fiction  of  legal  submission  of  facts  has  long  since 
been  abandoned,  and  now  in  cases  wliere  the  court  is  doubtful 
as  to  the  facts  involved  it  may  call  to  its  assistance  a  jury  to 
which  it  submits  certain  questions  involving  the  facts  that  are 
in  doubt  or  are  to  be  decided,  to  which  the  answer  of  the  jury 
is  taken  after  submitting  to  them  the  evidence  under  the  direc- 
tion of  the  court.  The  verdict  of  the  jury  is  but  an  answer  to 
the  questions  submitted,  and  is  only  used,  as  is  said,  to  assist 
the  conscience  of  the  court,  and  in  no  way  binds  the  court  to 
render  a  judgment  or  decree  in  conformity  with  it;  on  the 
other  hand,  the  court  may  utterly  disregard  the  verdict  and 
enter  a  decree  based  upon  its  own  judgment. 

In  Americaji  Dock^  etc.  Co.  v.  T/'ustee.s'^  the  appeal  was  taken 
for  the  purpose  of  obtaining  the  decision  of  the  court  as  to  the 
nature  of  a  feigned  issue.  The  court  in  its  opinion  said:  "An 
issue,  or,  as  it  is  commonly  called,  a  feigned  issue,  is  a  mode  of 
procedure  adopted  from  the  civil  law  by  courts  of  law  as  well 
as  courts  of  equity  as  a  means  of  having  some  question  of  fact 
arising  incidentallv,  and  to  be  made  the  foundation  of  some 
order  or  decree,  determined  by  the  verdict  of  a  jury.  It  is 
called  a  feigned  issue  for  the  reason  that  its  object  is  not  the 
establishment  of  a  legal  right  on  which  a  judgment  shall  regu- 
larly follow,  but  the  ascertainment  by  a  formal  trial  of  some 
issue  of  fact  arising  in  another  cause,  and  material  to  the  decis- 
ion of  the  latter.  For  convenience  of  trial  the  issue  must  be 
given  the  form  of  a  common-law  action,  with  appropriate 
pleadings,  and  an  issue  thereon;  but,  nevertheless,  the  nature 
and  purpose  of  the  issue  give  it  character  as  a  feigned  issue  or 
otherwise,  and  not  the  form  in  which  the  issue  is  expressed. 
The  issue  may  be  in  any  form  adapted  for  a  trial  in  a  court  of 
law  before  a  jury.  "Where  convenience  requires  it,  the  issue 
may  be  framed  as  if  upon  a  wager;  or,  if  practicable,  formal 
pleadings  in  an  ordinary  action  at  law  may  be  resorted  to,  and 

1 3  Bl.  Com.  453.  *  37  N.  J.  Eq.  2G6,  269. 


5  315.1  THE    HEARING.  4:25 

the  issue  may  be  in  such  form  as  to  present  the  real  subject- 
matter  in  controversy  without  losing  its  character  as  a  feigned 

issue." 

In  Church  V.  Kelsey^  the  question  as  to  the  right  to  trial  by 
jury  in  equity  cases  was  the  contention,  and  it  was  held  that 
the  constitution  of  the  United  States  did  not  have  the  effect  of 
taking  away  from  the  states  the  power  of  giving  courts  of 
equity  the  right  to  hear  and  determine  suits  brought  by  the 
holder  of  equitable  interests  in  lands  to  establish  rights  against 
the  holder  of  the  legal  title.  And  so  it  has  been  determined 
that  there  is  no  general  or  constitutional  right  to  a  trial  by 
jury  in  cases  that  are  clearly  within  the  equity  jurisdiction, 
even  where  the  defendant  has  been  brought  intoequity  against 
his  will.2  And  in  Michigan  the  court  held  that  the  legislature 
could  not  abridge  the  right  of  courts  of  chancery  to  decide 
questions  of  fact  without  the  intervention  of  a  jury.' 

§  315.  Submission  of  facts  to  jury  discretionary  with 
court.— In  equity  cases  neither  party  as  matter  of  right  can 
demand  a  jury.  Usually  the  case  is  tried  by  the  court,  but  the 
court  in  its  discretion  may  order  an  issue  or  issues  of  fact  to 
be  tried  by  a  jury,  or  may  grant  a  petition  made  by  the  parties 
asking  that  certain  issues  involved  in  the  cause  be  submitted 
to  a  jury.  If  either  of  the  parties  desires  that  a  certain  fact  or 
facts,  or  ail  of  the  facts,  be  submitted  to  a  jury  for  its  decision, 
he  may  petition  the  court,  setting  out  in  his  petition  the  ques- 
tions he  desires  to  have  tried,  file  his  original  petition  with  the 
register  of  the  court,  serve  a  copy  of  it  with  notice  of  hearing 
upon  the  opposite  solicitor,  and  bring  the  matter  to  the  atten- 
tion of  the  court  according  to  the  rules  and  practice  governing 
such  matters.    If  allowed,  the  facts  are  submitted  to  the  jury  in 

1121U.  S.  283.     Any  issue  present-  125;  Atwood  v.  Smith,  11  Ala.  894; 

ing  a  question  of  fact  where  there  is  Townsend   v.   Graves,  3    Paige  Ch. 

such  a  conflict  of  evidence  as    to  (N.  Y.)  453;  Pomeroy  v.  Winship,  13 

make  it  doubtful  on  which  side  the  Mass.  514,  7  Am.  Dee.  91 ;  Harding  v. 

preponderance  lies  may  properly  be  Handy,  24  U.  S.  (11  Wheat.)  103. 

submitted;  as,  for  example,  whether  2  Cates  v.  Allen,  149  U.  S.  451;  Dorr 

the   data  in  a   contract    had    been  v.    National  Bank,    128    Mass.    349; 

changed.     Mosher  v.  Davis,  58  N.  Y.  Bank  v.  Moulton,  143  Mass.  543. 

Sup.  W     Or  any   issue  depending  3  Bank  v.  Blodgett,  115  Mich.  161, 

upon  conflicting  testimony.    Griffith  169;    Brown   v.   Kalamazoo  Circuit 

v.  Blackwater,  46  W.  Va.  56,  33  S.  E.  Judge,  75  Mich.  294. 


42G  THE    HEARING.  [§  315. 

the  form  of  questions;  the  solicitor,  in  setting  out  the  facts 
which  he  desires  to  have  submitted,  stating  the  questions  that 
he  proposes  for  the  jury's  verdict;  as,  for  example,  if  the  issue 
be  as  to  whether  a  deed  of  conveyance  had  been  obtained  by 
fraud,  the  allegations  of  fact  making  up  the  fraud  being  al- 
leged in  the  bill,  the  solicitor  would  submit  as  a  question  for 
the  jury  whether  the  deed  so  described  was  obtained  by  fraud, 
and  the  verdict  of  the  jury  would  be  an  answer  which  is  virtu- 
ally yes  or  no  to  the  question  or  questions  proposed  and  not  a 
general  verdict  upon  the  merits  of  the  case.  The  issue  to  be 
submitted  is  often  made  up  by  stipulation  and  agreement  of 
the  parties  through  their  solicitors,  and  submitted  to  the  court 
for  its  approval.  The  court  may  submit  the  questions  stipu- 
lated, may  add  others,  or  strike  out  any  of  the  questions  he  de- 
sires not  to  submit,  or  may  refuse  to  submit  any  of  the  ques- 
tions and  make  up  the  issues  to  be  submitted,  or  may  refuse 
to  submit  any  issue  at  all  and  try  and  determine  the  facts 
without  a  jury.  The  court  is  not  bound  to  abide  by  a  stipu- 
lation of  the  parties  that  the  issues  of  fact  involved  be  sub- 
mitted to  a  jury;  the  matter  of  allowing  a  jury  to  try  any  part 
or  portion  of  the  facts  in  the  case  is  entirely  discretionary  with 
the  court.^ 

In  Baker  V.  Safe,  etc.  Co}  the  court  say:  "  A  court  of  equity, 
moreover,  has  full  power  and  right  to  decide  every  question 
of  law  and  fact  that  may  arise  out  of  the  subject-matter  be- 
fore it,  and  it  is  not  bound  to  send  issues  of  fact  to  be  tried  by 
a  jury." 

Where,  in  the  trial  of  an  equity  case,  the  plaintiflf  complained 
that  the  court  refused  to  give  to  the  jury  various  instructions 
which  he  requested,  and  also  to  submit  to  the  jury  a  number 
of  questions  asked  for  by  him,  the  court  held:  "It  being  an 

iln  Van   Hook    v.    Pendleton,    1  say   whether    the  verdict  is  right: 

Blatchf.  (U.  S.)   187,    195,    Beits,   J.,  and  the  court  may  set  it  asida     It 

said:     "It  is  not  a  matter  of  course  is  usually  the  better  practice  for  the 

to  order  a   feigned   issue;   but   the  court  to  try  such  issues  alone;    but 

party  applying  must  lay  a  founda-  the  court  may  in  its  discretion  order 

tion  for  it.    ...     A  feigned  issue  any  issue  or  issues  of  fact  to  be  tried 

is    not    to  be    granted    unless    the  by  a  jury."    Maclellan  v.  Seim,  57 

opinion  of  the  jury  on  a  question  is  Kan.  471,  46  Pac.  959. 

found   to  be  needed.     And  after  a  293  Md.  368,  381,  48  Atl.  920,  49  AtL 

jury   shall   have    passed    upon    the  623;  Lewis  v.  North,  62  Neb.  552,  87 

question,  it  will  be  for  the  court  to  N.  W.  312w 


§  31G.J 


THE    HEARING. 


427 


equitable  proceeding,  and  the  jury  being  called  simply  for  ad- 
visory purposes,  the  court,  not  being  bound  to  adopt  its  find- 
ino-s  had  a  ricrht  to  submit  to  it  such  questions  as  it  chose,  and 
to°rive  only  such  instructions  as  it  might  see  fit."  '  And  it  has 
be  °n  held  that  the  court  in  the  course  of  the  hearing  may  take 
the  advice  of  different  juries  at  different  times  as  to  the  facts 
involved  in  the  trial.- 

§  316.  Effect  of  the  verdict  or  findings  of  the  jury.—  ihe 
only  object  in  submitting  questions  of  fact  to  a  jury  in  a  chan- 
cery cause,  it  is  said,  is  to  assist  the  conscience  of  the  chancellor. 
The  verdict  in  no  way  binds  the  chancellor  to  find  the  questions 
of  fact  as  decided  by  the  jury ;  he  may  disregard  the  verdict  and 
determine  the  facts  to  be  entirely  different  and  base  a  decree 
upon  his  findings,  without  reference  to  the  verdict  of  the  jury. 
In  such  case  -the  findings  of  the  jury  are  largely  advisory  to 
the  court;  and  the  court  may  adopt  them  or  set  them  aside,  in 
whole  or  in  part,  or  make  neu-  or  additional  findings  from  the 
evidence,  as  the  same  may  warrant."* 

In  Brady  v.  Yost*  it  was  held  in  an  equitable  action  for  spe- 


1  Royce  v.  Latshaw  (Colo.,  1900),  62 

Pac  627. 

2  Mitchell  V.  Simpson,  62  Kan.  343. 

63  Pac.  440. 

3  Wood  V.  Turbush.  63  Kan.  779. 
In  Earle  v.  McCartney,  109  Fed.  13, 
15,  it  was  held  that  tlie  court  of 
equity  would  not  grant  an  issue  of 
fact  to  be  .^ubinitted  to  a  jury  where 
tiie  court  would  not  feel  at  liberty  to 
follow  it.  The  court  said:  "These 
questions  have  been  fully  heard  be- 
fore the  master  and  have  now  been 
considered  by  the  court.  1  see  no 
advantage  to  be  gained  by  going 
over  tiie  ground  again,  especially  in 
view  of  the  fact  that,  if  the  Hnding 
8hould  be  against  the  validity  of  the 
papers,  1  should  not  feel  at  liberty  to 
follow  It  The  application  for  an 
ibsue  IS  accordingly  refused."  Seisler 
V.  Smith,  150  Ind.  88,  46  N.  E.  993. 

4  55  Pac.  542  (Idaho,  1898).  In 
Shorten  v.  Judd,  60  Kan.  73,  55  Pac. 
266,  "thi-  principal  questions  to  which 
testimony  was  directed  at  the  trial 


were  the  validity  of  the  marriage 
vphich  it  was  claimed  was  entered 
into  between   W.  J.  and  S.  R,  and 
whether  J.  J.  was  the  issue  of  such 
marriage.     A    jury    was    called    to 
whom  two  questions  were  submit- 
ted, which,  with  their  answers,  are 
as   follows:    "Was   S.   M.,   formerly 
S.  R,  the  wife  of  W.  J.  at  the  time 
of  his  death?    A.  Yes.    Is  the  plaint- 
iff, J.  J.,  the  son  of  W.  J.,  deceased  ? 
A.    Yes.     These    findings   were  ap- 
proved and  adopted  by  the  court." 
The   court   further   held:    "The  ob- 
jection to  the  submission  of  issues 
of  fact  to  the  jury  is  not  well  taken. 
It   may   be    conceded  that  neither 
party  was  entitled,  as  a  matter  of 
right,  to  a  jury,  but  it  was  compe- 
tent for  the  court  to  take  the  advice 
of  the  jury  upon  disputed  questions 
of  fact.     In  cases  of  equitable  cogni- 
zance it  is  entirely  within  the  dis- 
cretion of  the  court  wliether  any  or 
all  the   issues  of  fact  shall  be  sub- 
mitted to  a  jury,  and  even  the  find- 


428  THE    HEARING.  [§  316. 

cific  performance  of  a  contract  that  the  defendant  was  not  en- 
titled to  a  jur}'  as  matter  of  right;  that  "the  jury  was  required 
to  pass  upon  certain  questions  of  fact,  and  its  findings  were 
only  advisory  to  the  court."  This  is  the  prevailing  practice  in 
nearly  all  of  the  states,  although  in  some  of  the  states  there  are 
statutes  that  more  or  less  affect  the  practice  in  this  regard. 
And  so  in  Biggerstaff  v.  Biggerstaff^  the  trial  court  upon  mo- 
tion set  aside  the  verdict  of  the  jury  and  entered  a  decree  in 
favor  of  the  defendants,  dismissing  complainant's  bill.  This 
was  alleged  to  be  error,  and  it  was  further  claimed  that  the 
weight  of  evidence  in  the  trial  of  the  cause  supported  the  ver- 
dict and  it  should  have  been  permitted  to  stand.  The  court 
say:  "It  was  not,  as  a  matter  of  law,  error  for  the  trial  court 
to  set  aside  the  verdict  and  enter  a  decree  contrarj'  thereto. 
In  cases  where  the  statute  requires  an  issue  in  chancery  to  be 
made  up,  to  be  tried  by  jury,  the  verdict  is  not  advisory,  but 
is  as  conclusive  as  a  verdict  of  a  jur}'  in  an  action  at  law.' 
Where,  however,  the  issue  is  not  required  by  the  statute  to  be 
submitted  to  a  jury,  it  is  discretionary  with  the  chancellor  to 
reject  the  verdict  and  render  a  decree  against  their  findings  or 
grant  a  new  trial,  as  he  may  believe  justice  requires.  The 
chancellor  in  such  case  is  the  sole  judge  of  the  evidence,  and 
the  purpose  is  to  inform  his  conscience,  and  is  advisory 
only."^ 

In  the  federal  courts  the  rule  prevails  that  the  submission  of 
issues  of  fact  to  a  jury  in  an  equity  case  is  discretionary^  with 
the  court  and  the  verdict  of  the  jury  is  advisory  merely.  And 
it  has  been  held  that  the  court  need  not  formally  set  aside  the 

ings  of  the  jury  upon  the  issues  sub-  2  Meeker  v.  Meeker,  T.l  111.  260; 
mitted  are  not  conclusive  upon  the  "Whipple  v.  Eddy,  161  111.  114;  Len- 
court.  It  may  adopt  or  reject  the  ning  v.  Lenning,  176  111.  180. 
findings  as  the  evidence  may  re-  3  ]\jji1j  y.  Moore,  39  III.  581;  Guild 
quire,  and  in  the  end  the  court  must  v.  Hull,  127  111.  529:  Titcomb  v.  Van- 
determine  for  itself  every  issue  in  tyle,  84  III.  371 ;  Van  Hook  v.  Pendle- 
the  case."  Hull  v.  Watts,  93  Va.  10;  ton,  1  Blatchf.  (U.  S.)  187;  Quinby  v. 
Miller  v.  Wills  et  al.,  95  Va.  837;  Conilan,  104  U.  S.  420.  "Apart  from 
Moran  v.  Daly.  13  App.  (D.  C.)  137;  statute,  the  findings  of  a  jury  in  pro- 
Neale  v.  Suber,  56  S.  C.  298,  33  S.  E.  ceedings  which  are  clearly  of  equity 
463.  co.iinizance  only,  are  not  binding 
U80I11. 407,  410.  54N.  E.  333;  Dud-  upon  the  court,  which  may  set 
ley  V.  Dudley,  176  Mass.  34,  56  N.  E.  them  aside  or  make  different  ones." 
1011.  Kohn  V.  McNulta,  147  U.  S.  2;J8. 


§§  317,  318.]  THE    HEARING.  *^^ 

verdict  of  the  jury  before  making  a  decree  in  accordance  with 
its  own  views  of  the  evidence,  but  may  disregard  it."^^ 

§317.  Instructions  to  jury,  or  order  as  to  verdict,  not 
subject   for   exceptions,- The  whole  proceedings,  the  sub- 
mitting questions  to  the  jury,  adopting  or  rejecting  the  verdict 
of  the  jury,  as  we  have  seen,  is  subject  entirely  to  the  discretion 
of  the  court.     The  court  may  refuse  to  comply  with  the  re- 
quest to  submit  the  issues  to  the  jury,  may  ignore  or  adopt 
the  verdict  of  the  jury,  the  findings  being  merely  advisory.    It 
therefore  follows  that  the  instructions  to  the  jury  given  by  the 
court  in  case  issues  are  submitted  to  a  jury,  or  the  orders  which 
the   court   may  make   with  reference  to  the  adoption  or  re- 
iection  of  the  verdict,  resting  so  entirely  in  the  discretion  of 
the  court  and  not  having  any  binding  force  or  effect  upon  the 
termination  of  the  case  by  the  court,  cannot  be  subjects  of  ex- 
ceptions, and  cannot  be  reviewed  by  the  appellate  court.    And 
where  the  court  in  its  findings  adopts  the  conclusions  of  the 
jury   and  the  appellant  excepted  to  certain  instructions  given 
the  jury,  it  was  held  that,  the  verdict  being  merely  advisory  to 
the  court,  the  instructions  were  not  the  subject  of  an  excep- 

tion.2  ,      ,         .  rru 

§  318.  The  court's  determination  at  the  hearing.—  ihe 

evidence  being  concluded  and  presented  to  the  court,  the  argu- 
ment of  counsel  and  their  briefs,  if  desired,  being  submitted, 
and  the  case  closed  and  submitted  tothe  judgment  of  the  court 
for  its  final  decree,  the  court  may  determine  the  case  by  dis- 
missing the  bill  of  complaint,  which  may  be  without  prejudice, 
or  by  granting  the  relief  prayed,  or  by  granting  such  relief  as 
in  the  judgment  of  the  court  the  case  merits,  if  the  prayer  for 
relief  is  sufficient.  Or  the  court  may  decide  the  questions  in- 
volved, and  by  decree  order  certain  things  to  be  done  which 
are  necessary  to  be  done  for  facilitating  the  determination  of 

1  Idaho   etc.  Co.   v.  Bradbury,  132  60   Ala.   lai;   Sullivan   v.  Royer.  72 

U.  S.  509;  Garsed  v.  Beali.  92  U.  S.  Cal.    248.    13   Pac.    655;    Peabody   v. 

684-  Wilson  v.  Riddle,  123  U.  S.  615;  Kendall,  145   111.  519.  32  N    E.  6,4; 

Barton  v.  B  .rbour.  104  U.  S.  126.  P.xlee  v.  Osborn,  48  Mo.  313;  Tren- 

2 Sheerer  V.  Cxoodwin.  123  Cal.  154,  ton,  etc.   Co.  v.   Rossell,  2  N.  J.  ^q. 

57  Pac.  789;  Richardson  v.  City  of  Eq.  (1    H.  W.  Green)    ^U^    M-i<   v. 

Eureka.    110  Cal.    441,    42  Pac.  96.1;  Spracher.  8.  Va.  162.  13  S.  E    39 

Diamond  Coal  Co.  v.  Cook.   129  CaU  Huse  v.   Washburn,  59  Wia  414,  18 

xviii,  61  Pac.  578;  Marshall  v.  Croom.  N.  W.  341. 


430  TUE    DEAKING,  [§  318. 

the  questions  involved  in  the  litigation.  If  the  court  finds  that 
the  defendant  should  prevail,  it  will  order  a  decree  dismissing 
the  complainant's  bill  absolutely  or  without  prejudice.  If  the 
decree  for  the  defendant  is  because  of  some  error  of  the  com- 
plainant in  the  procedure  or  pleadings  and  in  no  way  affecting 
the  merits  of  the  cause  —  as,  for  example,  if  there  is  want  of 
parties,  or,  if  in  the  federal  court,  want  of  jurisiiiction,  or  a 
failure  to  pray  for  the  proper  relief,  or  because  of  some  error 
which  can  evidentl}'  be  remedied, —  the  court  will  not  enter  an 
absolute  decree  dismissing  the  bill  of  comj)laint,  but  will  dis- 
miss the  bill  without  prejudice,  for  such  a  decree  will  be  no 
bar  to  the  filing  of  another  bill  for  the  same  cause  jirovided 
the  defects  that  occasion  the  decree  are  remedied.'  A  liecree 
dismissing  the  bill,  not  mentioning  that  it  is  without  prejudice, 
would  be  considered  to  be  an  absolute  decree  and  would  oper- 
ate as  a  bar  to  any  subsequent  suit  for  the  same  cause.^  It 
sometimes  happens  that  the  cause  cannot  be  fully  disposed  of; 
that  there  are  certain  estimates  to  be  made  or  accounts  to  be 
adjusted,  or  damages  to  be  assessed,  or  sales  to  be  made  and 
money  distributed  and  paid  as  decreed,  in  which  case  a  refer- 
ence is  made  to  a  master  or  commissioner  to  close  the  matter 
as  directed.  If  further  directions  are  required,  the  court  in 
such  case  will  hear  an  application  for  that  purpose  and  give  the 
needed  directions  for  carrying  out  its  decree.  But  if  it  is  a 
final  decree,  it  will  not  be  necessary  for  the  court  to  make  any 
further  order  that  will  vary  the  decree  made  or  be  inconsistent 
with  it. 

Whether  the  decree  found  by  the  court  be  a  final  decree  or 
not  depends  upon  whether  it  finally  disposes  of  the  litigation 
so  far  as  the  court  is  concerned.  A  final  decree  has  been  de- 
lined  to  be  "  the  last  decree  which  is  necessary  to  be  entered 
to  give  the  parties  the  full  and  entire  benefit  of  the  judg- 
ment of  the  court."  In  determining  whether  a  decree  is  a 
final  decree,  the  test  w^ould  seem  to  be  whether  any  ques- 
tions or  directions  are  reserved  for  the  future  judgment  of  the 
court. 

1  Rosse  V.  Rust,  4  Johns.  Ch.  (N.  Y.)  2  Case  v.  Beauregard,  101  U.  S.  688; 
300;  Walden  v.  Bodley,  14  Pet.  (U.  S.)  Durant  v.  Essex.  7  Wall.  (U.  S.)  107; 
156,  161;  Howtli  v.  Owens,  30  Fed.     Neafie  v.  Neafie,  7  Johns.  Ch.  1. 

9ia 


§  318.]  THB    HEARING.  431 

In  3fills  V.  Uoag'^  the  chancellor  very  clearly  defines  a  final 
decree  and  illustrates  its  requisites  and  limitations,  lie  says: 
"The  decree  in  this  case  comes  within  that  definition,  as  no 
further  questions  or  directions  are  reserved  for  the  future 
judgment  of  the  court.  And  although  some  further  proceed- 
ings are  to  be  had  before  a  master  to  carry  into  effect  the 
decree,  all  the  consequential  directions  depending  upon  the 
result  of  those  proceedings  are  given  in  the  present  decree. 
It  is  true  there  may  be  exceptions  to  the  master's  report;  and 
in  that  case  a  further  order  of  the  court  will  be  necessary  to 
dispose  of  those  exceptions.  But  a  decree  is  not  the  less  final 
in  its  nature  because  some  future  orders  of  the  court  may  possi- 
bly become  necessary  to  carry  such  final  decree  into  effect. 
The  usual  decree  in  mortgage  cases,  for  the  sale  of  property 
and  the  distribution  of  the  fund  among  the  parties  and  finally 
disposing  of  the  question  of  costs,  is  a  final  decree  as  between 
the  complainant  and  the  defendants,  and  is  constantly  enrolled 
as  such;  although  the  master's  report  of  the  sale  and  distribu- 
tion may  be  excepted  to  if  it  is  erroneous,  and  it  may  require 
a  subsequent  order  of  the  court  to  dispose  of  the  questions 
which  may  thus  arise." 

17  Paige  Ch.  (N.  Y.)  18,  19;  Railway  Ca  v.  Express  Ca,  108  U.  S.  24.  28; 
Bostwick  V.  Brinkerlioff,  106  U.  S.  3;  Grant  v.  Insurance  Co..  106  U.  S.  429. 


CHAPTER  XIY. 


PROCEEDINGS  BEFORE  MASTERS  OR  COMMISSIONERS. 


319.  The  master  in  chancery. 

320.  Duties  ministerial  and  judi- 

cial. 

321.  The  court  cannot  refer  all  the 


issues  to  a  master  to  hear, 
try  and  determina 
§  322.  Objections  and  exceptions  to 
the  report  of  the  master. 


§319.  The  master  in  chancery.— The  office  of  master  in 
chancery  is  of  very  early  origin,  commencinj^  when  the  chan- 
cery court  first  became  organized.  Masters  were  appointed  by 
the  king  to  assist  the  chancellor  in  hearing  the  complaints  of 
those  seeking  redress  and  furnishing  them  with  appropriate 
writs  for  the  commencement  of  their  causes.  With  the  in- 
crease of  the  duties  and  independence  of  the  court  of  chancery 
came  a  corresponding  increase  in  the  duties  and  importance 
of  the  master.  Important  facts  were  referred  to  him  to  hear 
the  proofs  and  report  his  findings  upon  them  to  the  court. 
This  office  continued  in  England  until  the  present  code  of 
practice  was  adopted. 

Masters  in  chancery  are  generally  appointed  by  the  court 
to  assist  in  its  ministerial  duties.  Matters  are  referred  to  them 
by  orders  of  reference  or  decretal  orders  involving  the  deter- 
mination of  interlocutory  questions,  to  take  testimony,  make 
computations,  and  often  to  sift  and  collate  the  testimony  and 
the  evidence  adduced  and  report  to  the  court  their  findings 
and  the  reasons  therefor.  In  some  jurisdictions  these  officers 
are  elected  to  their  office  and  are  called  by  different  names, 
as  court  commissioners,  or  circuit  court  commissioners.  The 
United  States  courts  appoint  standing  masters  in  chancery  in 
their  respective  districts,  and  often  it  is  necessary  to  appoint 
special  masters  to  attend  to  and  report  upon  special  matters 
referred  to  them.'     It  is  still  the  practice  in  some  jurisdictions, 

1  United  States  Equity  Rule  82  courts  may  appoint  standing  mas- 
provides  for  appointment  of  masters  ters  in  chancery  in  their  respective 
in  chancery  as  follows:  "  The  circuit    districts  (a  majority  of  all  the  judges 


§  320.]         PEOCEEDINGS  BEFORE  MASTERS,  ETC.  433 

though  not  so  general  as  formerly,  to  refer  the  case  to  a  mas- 
ter, or  commissioner,  by  an  order  allowed  of  course  by  the 
rules  of  practice,  to  take  the  proof  and  report  all  tbe  testimony 
and  evidence  in  the  case  to  the  court  to  be  used  at  the  hear- 
ing, the  course  of  practice  in  such  cases  being  fixed  by  statutes 
and  by  rules. 

§  320.  Duties  ministerial  and  judicial. —  The  duties  of  the 
master  or  commissioner  in  chancery  cannot  be  said  to  be  en- 
tirely ministerial;  he  is  generally  required  to  report  his  find- 
ings as  well  as  the  proofs  taken  by  him,  and  in  some  cases  to 
analyze  the  proofs  and  determine  for  the  court  the  real  ques- 
tions in  issue.  The  Pennsylvania  court  in  discussing  this  ques- 
tion said:  "By  reason  of  the  large  amount  of  equit}'  business, 
original  and  appellate,  it  has  become  impossible  for  this  court 
to  examine  every  case,  and  in  detail;  but  we  must  be  brought 
directly  to  the  points  of  the  contest.  This  can  be  done  only 
by  a  preliminary  hearing  before  a  competent  master,  who  can 
take  time  to  examine  the  case  well  and  report  upon  it  intelli- 
gently and  accurately.  The  effect  of  this  is  to  eliminate  from 
the  controversy  that  which  is  undisputed,  and  to  develop  the 
true  points  of  contest.  .  .  .  But  there  is  no  impropriety  in 
this,  as  it  only  serves  to  develop  the  cause  fully,  and  is  not 
binding  on  the  parties  unless  approved  by  us  after  an  exami- 
nation of  the  matters  in  dispute.  The  conclusiveness  of  a 
master's  report  is  sometimes  spoken  of.  But,  properly  speak- 
ing, no  report  is  conclusive.  That  would  be  to  make  the  judg- 
ment of  an  officer  performing  an  ancillary  service  superior  to 
our  own.  The  weight  due  to  a  master's  or  auditor's  re])ort 
depends  on  the  matter  in  question.  When  he  reports  facts  di- 
rectly proved  by  the  witnesses  we  are  accustomed  to  give  his 
report  great  weight,  because  of  his  superior  opportunities  of 
judging  of  the  credibility  of  the  witnesses  and  the  effect  of 
their  testimony.  But  when  the  fact  is  a  deduction  merely 
from  other  facts  reported  by  him,  his  conclusion  is  simply  a 
result  of  reasoning,  of  which  we  are  as  competent  to  judge  as 
he.     Then  if  we  find  a  master  supporting  a  conclusion  by  false 

thereof,  including  the  justice  of  the     ment);  and  they  may  also  appoint  a 
supreme   court,   the   circuit  judges    master  pro /mc  rice  in  any  particu- 
and  the  district  judge  for  the  dis-     lar  case." 
trict,    concurring    in    the    appoint- 

28 


434  FitOCEKDIKGS    BEFORE    MASTERS,  ETG  [§  320. 

deductions,  or  upon  erroneous  views  of  the  character  and 
weight  of  the  facts  actually  founil,  it  is  not  only  our  ri<,'ht  but 
our  duty  to  correct  his  error.  When  in  order  to  arrive  at  a 
proper  decree  he  also  states  his  conclusions  of  law,  they  are 
but  opinions  submitted  for  our  adoption,  if  we  think  they  are 
founded  in  reason  and  law.  Hence  the  report  of  a  master  is 
neither  a  decision  nor  an  infallible  guide,  but  is  a  serviceable 
instrumentality  to  aid  us  in  performing  our  own  function."* 
Eut  the  court  of  Illinois  say:  *' He  is  but  the  ministerial 
officer  of  the  court,  to  perform  such  duties  as  may  be  required 
of  him  by  the  chancellor  in  the  performance  of  his  judicial 
functions.  His  powers  are  delegated  to  him  by  the  court,  and 
the  court  can  confer  on  him  no  judicial  powers.  Those  pow- 
ers are  vested  in  the  judiciary,  and  cannot  be  delegated  to  any 
but  persons  belonging  to  that  department  of  government.  All 
the  acts  of  the  master  become  binding  only  by  being  approved 
and  adopted  by  the  court.  Hence  the  court  alone  can  find, 
adjudge  and  decree  so  as  to  bind  the  parties  and  the  subject- 
matter."* 

After  all  the  discussion  and  objections  it  seems  clear  that 
these  officers  have  some  judicial  powers;  their  reports  carry 
with  them  great  weight,  though  not  conclusive.  They  are 
often  called  upon  to  report  upon  the  matters  that  are  really  in 
issue,  and  frequently  find  and  determine  facts  that  control 
certain  questions  that  are  referred  to  them;  always,  however, 
subject  to  adoption  or  rejection  by  the  court.  They  cannot 
make  final  determination  of  the  matters  submitted,  and  the 
parties  may  always  protect  themselves  by  exceptions  to  their 
findings  and  report,  when  the  chancellor  will  review  the 
proofs  bearing  upon  these  exceptions.  The  master  is  always 
limited  in  his  findings  to  the  decree  or  decretal  order  referred 
to  him;  from  it  he  receives  authority  to  act  in  the  premises 
and  he  cannot  depart  from  it.'  Where  the  regular  master  in 
chancery  is  a  party  to  the  suit,  it  is  the  duty  of  the  court  to 
appoint  a  special  master.* 

1  Phillips'  Appeal,  68  Pa.  St  180, 13a  where  it  was  held  that  the  acts  of 

2  Hards  v.  Burton,  79  111.  504.  509;  the  commissioners  appointed  by  the 
Kimberly  v.  Arms,  129  U.  S.  512;  decree  in  chancery,  who  materially 
Palethrop  v.  Palethrop,  184  Pa.  St  departed  from  the  authority  therein 
585,  39  Atl.  489.  conferred,  were  void. 

•  Welsh  V.   Louis,  31  111.  446,  457,        <  Gilliam  v.  Bald  win,  96  III  App.  32a 


§  321.]  PB0CEEDING8   BEFOEE   MA8TEES,  ETC.  435 

§  321.  The  conrt  cannot  refer  all  the  issues  to  a  master 
to  hear,  trj  and  determine. —  In  the  judge  of  the  court  alone 
is  vested  the  authority  to  fully  and  finally  determine  the  issues 
of  law  and  fact  in  every  cause  brought  into  the  court,  and  he 
cannot  delegate  that  authority  to  any  other  person  or  officer, 
except  by  consent  of  all  the  parties  to  the  case.  It  has  been 
said '  that  "  A  master  in  chancery  is  an  ofiicer  appointed  by 
the  court  to  assist  it  in  various  proceedings  incidental  to  the 
progress  of  a  cause  before  it,  and  is  usually  employed  to  take 
and  state  accounts,  to  take  and  report  testimony,  and  to  per- 
form such  duties  as  require  computation  of  interest,  the  value 
of  annuities,  the  amount  of  damages  in  particular  cases,  the 
auditing  and  ascertaining  of  liens  upon  property  involved,  and 
similar  services.  The  information  which  he  may  communicate 
by  his  findings  in  such  cases,  upon  the  evidence  presented  to 
bira,  is  merely  advisory  to  the  court,  which  it  may  accept  and 
act  upon  or  disregard  in  whole  or  in  part,  according  to  its  own 
judgment  as  to  the  weight  of  the  evidence.  In  practice  it  is 
not  usual  for  the  court  to  reject  the  report  of  a  master,  with 
his  findings  upon  the  matter  referred  to  him,  unless  exceptions 
are  taken  to  them  and  brought  to  its  attention,  and,  upon  ex- 
amination, the  findings  are  found  unsupported  or  defective  in 
some  essential  particular.  It  is  not  within  the  general  province 
of  a  master  to  pass  upon  all  the  issues  in  an  equity  case,  nor  is 
it  competent  for  the  court  to  refer  the  entire  decision  of  a  case 
to  him  without  the  consent  of  the  parties.  It  cannot,  of  its 
own  motion,  or  upon  the  request  of  one  party,  abdicate  its 
duty  to  determine  by  its  own  judgment  the  controversy  pre- 
sented, and  devolve  that  duty  upon  any  of  its  officers.  But 
when  the  parties  consent  to  the  reference  of  a  case  to  a  master 
or  other  officer  to  hear  and  decide  all  the  issues  therein,  and 
report  his  findings,  both  of  fact  and  of  law,  and  such  reference 
is  entered  as  a  rule  of  the  court,  the  master  is  clothed  with 
very  different  powers  from  those  which  he  exercises  upon 
ordinary  references,  without  such  consent;  and  his  determina- 
tions are  not  subject  to  be  set  aside  and  disregarded  at  the 

1  Kiraberly  t.  Arms,  129  U.  S.  512,  108  U.  S.  66;  Tilghman  v.  Proctor, 

523;   Basey  v.  Gallagher,  20    Wall.  125  U.  &  136;  Callaghan  ▼.  Myers. 

(U.  S.)  670. 680;  Quinby  v.  Conlan,  104  128  U.  S.  617,  66a 
U.  S.  420, 424;  Medsker  v.  Bonebrake, 


436  PEOCEEDINGS    BEFORE    MASTERS,  ETC.  [§  322. 

mere  discretion  of  the  court.  A  reference,  by  consent  of 
parties,  of  an  entire  case  for  the  determination  of  all  its  issues, 
though  not  strictly  a  submission  of  the  controversy  to  arbitra- 
tion—  a  proceeding  which  is  governed  by  special  rules, —  is  a 
submission  of  the  controversy  to  a  tribunal  of  the  parties'  own 
selection,  to  be  governed  in  its  conduct  by  the  ordinary  rules 
applicable  to  the  administration  of  justice  in  tribunals  estab- 
lished by  law.  Its  findings,  like  those  of  an  independent 
tribunal,  are  to  be  taken  as  presumptively  correct,  subject, 
indeed,  to  be  reviewed  under  the  reservation  contained  in  the 
consent  and  order  of  the  court,  when  there  has  been  manifest 
error  in  the  consideration  given  to  the  evidence,  or  in  the  ap- 
plication of  the  law,  but  not  otherwise." 

The  Pennsylvania  court  among  others  have  expressed  them- 
selves in  strong  terms  upon  this  subject,  holding  that  an  order 
referring  all  the  issues  in  a  cause  to  a  master  is  a  simple  nul- 
lity, and  that  a  decree  made  under  such  circumstances  has 
nothing  to  support  it,  for  the  reason  that  the  cause  has  not 
been  heard  before  any  one  having  the  right  to  hear,  try  and 
determine  it.' 

§  3*22.  Objections  and  exceptions  to  the  report  of  the 
master. —  While  the  report  of  the  master  is  held  to  be  merely 
advisory,  it  is  also  conceded  that  it  carries  with  it  great 
weight;  that  his  findings  of  fact  "are  supported  by  a  strong 
presumption  of  correctness,  and  will  not  be  set  aside  or  modi- 
fied in  the  absence  of  clear  evidence  of  mistake  or  error." ^ 
His  conclusions  will  be  held  to  be  correct  unless  the  court  is 
clearly  convinced  that  they  are  wrong.'  It  is  therefore  im- 
portant, if  the  findings  and  report  of  the  master  in  chancery 
do  not  comport  with  the  law  and  facts  in  the  case,  that  excep- 
tions should  be  taken  to  the  report  and  presented  to  the  court. 
These  exceptions  must  be  specific  and  point  out  the  special  er- 
rors upon  which  the  party  relies;  and  it  has  been  said  that  "  the 
object  of  such  definiteness  is  to  give  the  master  an  opportunity 

1  Palethrop  v.  Palethrop,   184  Pa,  341 ;  Tainter  v.  Franklin  Nat.  Bank, 

St  585,  39  Atl.  489.  107  Fed.  825;  Haymond  v.  Camden, 

2Columbus,  etc.  Co.  Appeals,  48  C.  48  W.  Va.  463.  87  S.  E.  643;  Hubbard 

C.  A.  278,  109  Fed.  177.  v.  Hubbard,  79  111.  App.  217. 

'Ward  V.  Bank,  130  Ala.  597, 30  So. 


§  322.] 


PKOCEEDINQS  BEFORE  MASTERS,  ETO. 


437 


to  see'wherein  his  report  is  subject  to  objection  and  to  apprise 
the  opposite  party  of  just  what  he  has  to  meet."  ^ 

Where  testimony  is  objected  to,  the  master  should  receive 
the  testimony  subject  to  the  objection  and  report  it  to  the 
court;  and  where  exceptions  are  taken  to  the  report,  the  testi- 
mony should  be  reported  by  the  commissioner  so  that  the 
court  may  be  able  to  pass  upon  the  exceptions  in  the  light  of 
the  testimony  that  was  given  to  the  commissioner.^ 


1  Columbus,  etc.  R  Co.  Appeals,  48 
C.  C.  A.  275,  317,  109  Fed.  177;  Craw- 
ford V.  Osmun,  90  Mich.  77;  Sheffield, 
etc.  Ry.  Co.  v.  Gordon,  151  U.  S.  285; 
Neal  V.  Briggs,  110  Fed.  477;  Poling 
V.  Huffman,  48  W.  Va.  639,  37  S.  E. 
526;  Dorn  v.  Farr,  79  111.  App.  226. 
In  Whalen  v.  Stephens,  193  111.  121, 
132,  it  was  held  that  where  no  objec- 
tion was  made  to  the  evidence  taken 
before  a  master,  and  no  objections 
relating  to  the  admission,  exclusion 
or  refusal  to  exclude  evidence  among 
the  objections  to  the  master's  report, 
the  hearing  was  limited  to  questions 
of  this  nature  raised  by  the  excep- 
tions; and  when  such  questions  are 
not  so  raised  error  canaot  be   as- 


signed in  respect  to  it  that  the  objec- 
tions came  too  late.  U.  S.  Eq.  Rule 
83;  Home  Land  &  Cattle  Co.  v.  Mo- 
Namara,  49  C.  C.  A.  642,  111  Fed.  822: 
Ward  V.  Jewett.Walk.  Ch.  (Mich.)  45; 
Schwarz  v.  Sears,  Walk.  Ch.  19. 

2  Kansas,  etc.  Co.  v.  Electric  Co., 
108  Fed.  702.  In  Kingsbury  v.  Kings- 
bury, 20  Midi.  212,  it  was  held  that 
the  report  of  the  commissioner  stands 
in  the  same  relation  to  a  decree  as  a 
verdict  stands  to  a  judgment.  And 
in  Butterfield  v.  Beardsley,  28  Mich. 
412,  it  was  held  to  be  a  general  rule 
that  the  report  of  a  master  in  chan- 
cery will  be  received  as  true  when 
there  are  no  exceptions  taken. 


CHAPTER  XV. 


THE  DECREES. 


323.  The  decree  in  equity  corre- 
sponds to  the  judgment  at 
law. 

824  (1)  A  final  decree. 

335.  (2)  Interlocutory  decrees. 

826.  Some    other     distinguishing 

features. 

827.  Soiue  essentials  to  a  valid  de- 

crea 

328.  The  frame  of  the  decree. 

329.  Drawing  and  settling  the  de- 

cree. 

330.  A  decree  after  the  death  of 

the  party. 
831.  Decrees  pro  confesso. 

332.  Enrolment  of  decreob 

333.  Nece.ssity  of  enrolment 


§  334  Somechangesthecourtifl  per- 
mitted to  make. 

835.  Reopening    the   cause  —  Re- 

hearing. 

836.  The  practice  and  reasons  for 

granting. 

837.  Reopening  decrees  taken  pro 

confesso  and  permitting  de- 
fensa 

838.  The  party  moving  to  reopen 

the  cause  for  reiiearing 
must  not  be  guilty  of  laches. 

339.  Form  and  requisites  of  the  ap- 
plication, filing  and  serving 
the  same,  and  the  answer 
thereto. 

840.  The  hearing^ 


§  323.  The  decree  in  equity  corresponds  to  the  judgment 
at  law. —  The  decree  in  equity  is  the  sentence  or  judgment  of 
the  court,  determined  and  pronounced  after  the  hearing  and 
submission  of  the  cause.  It  has  been  said  to  be  "  a  sentence 
or  order  of  the  court,  pronounced  on  hearing  and  understand- 
ing all  the  points  in  issue,  and  determining  the  right  of  all  the 
parties  to  the  suit,  according  to  equity  and  good  conscience."^ 

Mr.  Freeman  says  that  "  decrees  generally  conform  to  the 
description  here  given  of  them.  They  are  none  the  less  de- 
crees, however,  if  pronounced  without  hearing  or  understand- 
ing the  points  in  issue.  Neither  is  it  necessary  to  their  exist- 
ence or  validity  that  the  rights  of  the  parties  be  determined 
according  to  equity  and  good  conscience."'  The  decree  in 
equity  corresponds  to  a  judgment  of  a  court  of  law;  and  under 
the  code  practice  a  final  adjudication,  whether  at  law  or  in 


12  Danl.  Ch.  PL  &  Pr.  (6th  Am.  ed.)  98a 

> Freeman  on  Judgments,  sec.  9;  Randall  v.  Payne,  1  Tenn.  Ch.  144 


§  324.]  THE   DECEEK.  439 

equity,  is  called  a  judgment.'  It  differs  from  a  decretal  order, 
in  tiiat  it  is  a  final  disposition  of  the  cause  after  the  hearing 
upon  the  several  questions  at  issue;  while  the  decretal  order 
is  an  order  by  the  court  upon  motion  or  petition  made  before 
or  after  the  hearing,  or  in  an  independent  proceeding.^  They 
are  usually  orders  made  preparatory  to  the  final  judgment  and 
for  the  purpose  of  governing  the  proceedings.' 

Decrees  may  be  subdivided  into  (1)  final  decrees,  and  (2)  in- 
terlocutory decrees,  depending  upon  the  finality  of  the  dispo- 
sition or  determination  of  the  cause. 

§  324.  (1 )  A  final  decree.—  A  final  decree  has  already  been 
defined.*  It  is  the  full  and  final  disposition  of  the  pending 
cause  after  its  submission  to  the  court  and  the  court's  deliber- 
ation upon  it.  It  reserves  no  further  questions  or  directions 
for  the  judgment  of  the  court;  the  cause  by  it  is  so  disposed 
of  that  it  will  not  be  necessary  to  bring  the  case  again  before 
the  court  for  final  decision.  It  is  what  it  purports  to  be  —  a 
final  decree.* 

It  becomes  very  important  to  determine  whether  a  decree 
is  a  final  decree  in  those  states  where  by  the  statute  the  right 
of  appeal  is  limited  to  such  decrees  only.  Where,  at  the  foot 
of  the  decree,  leave  was  given  to  either  party  to  apply  for 
such  further  order  as  might  be  necessary  to  the  due  execution 
of  the  decree,  or  that  might  be  required  in  relation  to  any 
matter  not  finally  determined  by  it,  but  the  decree  stated  that 
"the  court  is  of  the  opinion  that  the  equity  of  the  case  is  with 
the  complainant,"  and  ordered  a  perpetual  injunction,  it  was 
held  to  be  a  final  decree  and  might  be  appealed  from;*  that 
a  decree  of  foreclosure  and  sale  of  mortgaged  premises  is  a 
final  decree,  and  that  the  defendant  is  entitled  to  an  appeal 
therefrom  without  waiting  for  the  return  and  confirmation  of 
the  sale  by  a  decretal  order,  because  the  decree  is  final  as  to 
the  merits,  and  the  subsequent  proceedings  are  but  a  mode  of 
executing  it.     And  so  a  decree  dismissing  a  bill  of  complaint 

1  Walker  v.  Walker,  93  Iowa,  643,  18;  Gilpatriok  v.  Glidden,  82  Me.  201; 
61  N.  W.  930;  Hughes  v,  Shreve,  3  Pari-er  v.  Flagg,  127  Mass.  28;  Evans 
Mete.  (Ky.)  547.  v.  Dunn.  26  Ohio  St.  439;  Van  Meter 

2  1  Barb,  Ch.  Pr.  337.  v.  Van  Meter,  3  Grat  (Va.)  148. 
'Thompson  v.  White,  63  Cal.  505.        6  French  v.  Shoemaker,   12  Wall. 
*  Ante,  ^S18.                                         (U.  S.)  86. 

•Mills  V.  Hoag,  7  Paige  Ch.  (N.  Y.) 


440  THE    DECREE.  [§  325. 

with  costs  to  be  taxed  was  held  to  be  a  final  decree  from  which 
the  defendant  was  entitled  to  an  appeal.' 

A  decree  nisi,  that  is,  a  decree  that  is  to  take  effect  unless 
the  defendant  fails  to  show  some  cause  against  it  within  some 
certain  time,  or  fails  to  perform  some  act  directed  by  the  de- 
cree, is  a  final  decree  if  it  disposes  of  and  determines  the 
questions  at  issue  in  the  cause.  And  it  may  be  said  that  a  de- 
cree is  a  final  decree  even  though  some  supplemental  order  is 
made  in  connection  with  it,  or  after  it  has  been  determined  and 
granted.  These  supplemental  decrees  do  not  create  any  other 
or  different  liability,  or  alter  or  change  the  judgment  and  de- 
cision of  the  court  as  shown  by  the  decree,  but  are  rather  de- 
crees or  orders  for  the  enforcement  and  carrying  out  of  the 
final  decree  in  the  cause. 

§  325.  (2)  Interlocutory  decrees. — The  interlocutory  decree 
differs  from  the  final  decree  in  that  it  reserves  the  further  con- 
sideration of  the  cause  for  a  future  hearing,  and  because  it  is 
not  a  final  determination  of  the  controversy,  and  so  far  as  the 
court  hearing  the  cause  is  concerned  is  not  a  determination  of 
the  issues;  it  has  been  generally  held  not  to  be  appealable.' 
It  however  often  becomes  a  diirieult  question  to  decide,  and 
decrees  that  would  seem  to  be  interlocutory  because  of  the 
manner  in  which  they  are  obtained  often  so  fully  dispose  of 
material  questions — questions  that  really  determine  the  mat- 
ters in  issue  —  that  they  are  held  to  be,  for  the  purpose  of  re- 
viewing the  case  in  the  appellate  court,  final  decrees.  But 
where  the  decree  is  interlocutory  and  not  final,  as,  for  exam- 
ple, a  decree  for  the  payment  of  alimony,  allowing  or  dissolv- 
ing a  temporary  injunction,  the  punishment  of  one  of  the  par- 
ties for  contempt,  the  appointment  of  a  trustee  or  receiver  to 
take  charge  of  the  funds,  a  decree  ordering  a  feigned  issue,  to 
confirm  the  report  of  a  master  in  chancery  upon  some  inter- 
locutory matter  referred  to  him, —  the  remedy  of  the  party 
against  whom  such  order  is  made  is  not  by  appeal,  but  the 
proper  remedy  for  the  modification  of  it  is  by  application  to 
the  court  making  the  order.' 

In  Knox  v.  Harshman  *  the  court  say:  "  The  general  rule  is 

1  Fowler  v.  Hamill,  139  U.  S.  549.  3  Furnald  v.  Glenn,  12  C.  C.  A.  27, 

2  Vanderveer's  Adm'x  v.  Holcoiub,     64  Fed.  49. 

23  N.  J.  Eq.  555.  *  132  U.  S.  14,  16. 


§  326.]  THE    DECREE.  441 

well  settled  that  an  appeal  from  a  decree  granting,  refusing 
or  dissolving  an  injunction  does  not  disturb  its  operative  effect. 
When  an  injunction  has  been  dissolved  it  cannot  be  revived 
except  by  a  new  exercise  of  judicial  power,  and  no  appeal  by 
the  dissatisfied  party  can  of  itself  revive  it."  And  where  the 
decree  purported  to  declare  and  regulate  in  advance  all  or 
nearly  all  of  the  future  actions  or  doings  of  the  court  in  the 
future  disposition  of  the  case,  it  was  held  by  the  court  that 
"in  spite  of  all  this  it  really  adjudicates  nothing  capable  of 
being  carried  into  effect  without  further  inquiry  as  to  the 
rights  and  liabilities  of  the  parties,"  and  dismissed  the  appeal. 
§  3'26.  Some  other  distinguishing  features. —  Decrees  are 
said  to  be  further  distinguished  as  decrees  (1)  in  personam, 
(2)  decrees  in  rem,  (3)  consent  decrees,  and  (4)  decrees  nunc  jpro 
tunc;  the  titles  distinguishing  each  of  these  decrees  and  indi- 
cating their  nature. 

(1)  The  decree  in  personam  is  a  direction  or  command  to  one 
of  the  parties  to  the  suit  in  equity  for  the  performance  or  non- 
performance of  some  act.  Decrees  in  equity  are  more  fre- 
quently decrees  in  personam-;  as,  for  example,  directing  the 
conveyance  of  the  title  to  the  property  involved,  to  discharge 
a  lien,  to  cancel  and  deliver  up  an  obligation,  to  specificallj'' 
perform  a  contract,  to  foreclose  a  mortgage,  to  discontinue  or 
abate  a  nuisance,  or  to  perform  or  desist  from  the  performance 
of  some  act  which  personally  affects  the  parties  in  interest. 

(2)  A  decree  in  rem  is  one  fixing  and  determining  the  status 
or  title  of  the  thing  in  controversy. 

(3)  A  consent  decree  is  one  entered  by  consent  of  the  parties; 
it  is  important  in  that  a  bill  of  review  will  not  be  allowed  after 
such  a  decree  has  been  filed,  for  if  the  parties  have  consented 
to  the  decree  the  court  would  not  order  it  set  aside. 

(4)  A  decree  nunc  pro  tunc  is  what  its  title  indicates:  a  de- 
cree entered  "now  for  then."  As  where  by  the  act  of  the 
court  a  decree  has  been  delayed  after  the  hearing  of  the  cause 
for  any  reason,  and  the  delay  is  in  no  way  attributable  to  the 
laches  of  the  parties,  the  court  may  render  the  decree  and  order 
it  entered  as  of  the  time  when  it  should  or  might  have  been 
entered  if  rendered  in  time.  It  has  been  said  that  it  is  the 
duty  of  the  court  to  see  that  the  parties  shall  not  suffer  by  its 
delay,  and  that  "  a  nunc  pro  tunc  order  should  be  granted  or 


442 


THB    DBGKEB. 


[§  327. 


refused,  as  justice  may  require  in  view  of  the  circumstances  of 
the  particular  case."^ 

§  3'27.  Some  essentials  to  a  valid  decree. —  Among  the  most 
important  essentials  to  a  valid  decree  is  jurisdiction  of  the  sub- 
ject-matter of  the  litigation  and  of  the  parties  to  the  cause. 
Whenever  it  is  discovered  by  the  court,  no  matter  at  what  stage 
of  the  proceedings,  that  there  is  want  or  failure  of  jurisdiction 
as  to  the  subject-matter  or  the  parties,  it  will  refuse  to  proceed. 
The  court  will  not  undertake?  to  determine  the  rights  of  persons 
who  are  not  made  parties  to  the  salt  at  some  time  during  its 
progress,  nor  will  it  render  a  final  decree  until  all  persons 
necessary  to  be  made  parties  are  brought  before  it  either  by 
actual  or  constructive  service  or  by  voluntary  appearance. 

In  Graham  v.  Elmore'^  the  court  say:  "It  is  the  uniform 
rule  that  a  final  decree,  or  an  interlocutory  decree,  which  in  a 
great  measure  decides  the  merits  of  the  cause,  cannot  be  pro- 
nounced until  all  the  parties  to  the  bill,  and  all  the  parties  in 
interest,  are  before  the  court.     This  rule  is  usually  applied  to 


1  Mitchell  V.  Overman,  103  U.  S.  65; 
Gray  v.  Brignardello,  1  Wall.  (U.  S.) 
627. 

«Harr.  Ch.  (Mich.)  275;  Orthwein 
V.  Thomas.  127  111.  554,  571.  "Parties 
to  a  decree,  in  tlie  eye  of  the  law, 
are  those  only  who  are  named  as 
such  in  the  record,  and  are  properly 
served  with  process,  or  enter  their 
appearance,  while  a  privy  in  blood 
or  estate  is  one  who  derives  his  title 
to  the  property  in  question  by  de- 
scent or  purchase;  and  a  privy  to  a 
judgment  or  decree  is  one  whose 
succession  to  the  rights  of  property 
thereby  affected  occurred  after  the 
institution  of  the  particular  suit, 
and  from  a  party  thereto."  Free- 
man on  Judgments  (od  ed.),  sec.  162; 
Borders  v.  Murphy,  78  111.  81 ;  Shaw  v. 
Hoadley,  8  Blackf.  (Ind.)  165;  Conn. 
V.  Penn.,  5  Wheat,  (U.  S.)  424,  5  L. 
Ed.  125;  Ogden  v.  Davidson.  81  Va. 
757;  Russell  v.  Clark,  11  U.  S.  (7 
Cranch).  69;  Shields  v.  Barrows.  58 
U.  S,  (17  How.)  130;  Barney  v.  City 
of  Baltimore,  73  U.  S.  (6  Wall.)  2»0; 


Hamilton  v.  Savannah,  etc.  Ry.  Co., 
49  Fed.  412;  Muldrow  v.  Muldrow, 
32  Ky.  (2  Dana).  386.  It  has  been 
held  by  the  supreme  court  of  the 
United  States  that  it  will  not  make 
a  final  decree  upon  the  merits  of  the 
case  unless  all  i)ersonst8^entiaily  in- 
terested are  made  parties  to  i  lie  suit, 
even  though  son)e  of  them  are  not 
within  the  jurisdiction  of  the  court 
Russell  V.  Clark,  U.  S.  (7  Cranch),  169. 
3  L.  Ed.  371;  Shields  v.  Barrows,  17 
How.  (U.  S.)  113.  15  L.  Ed.  158;  Young 
V. Gushing, 4 Bis.s. (U.S.) 456;  Anthony 
V.  Sliannon,  8'Ark.  (3  Eng.)  52.  Bui 
in  Carey  v.  Hoxey,  11  Ga.  645,  652.  it 
was  held  that  wiiere  the  parties  are 
so  numerous  that  it  is  impossible  to 
join  them  all,  the  court  will  make 
such  a  decree  as  it  can.  Hopkins  v. 
Roseclare  Lead  Co.,  72  111.  373.  But 
in  Kentucki'  it  was  held  that  the 
court  of  equity  will  not  render  a  de- 
cre'-  even  in  an  amicable  suit  where 
there  is  a  want  of  indispensable 
parties.  Grider  v.  Payne,  39  Ky.  (9 
Dana),  188. 


ft  327.  1  THE   DECREE.  4:43 

cases  where  the  complainant  has  not  made  proper  parties  to 
his  bill,  or  where,  the  proper  parties  having  been  made  to  the 
bill,  the  complainant  has  not   taken  the  necessary  steps  to 
bring  them  before  the  court."     The  decree  should  conform  to 
the  allegations  and  prayer  of  the  bill.    As  to  the  extent  of  the 
decree  it  is  necessarily  limited  by  the  allegations  in  the  bill 
of  complaint  and  by  the  prayer  of  the  bill,  but  if  a  general 
prayer  for  relief  is  added  to  the  bill,  then,  as  we  have  seen,  the 
court  is  only  limited  by  the  case  made,  and  may  render  such 
a  decree  as  equity  and  good  conscience  demands,  having  in 
view  and  being  limited  only  by  the  allegations  contained  in 
the  pleadings.'     And  the  court  will  not  render  a  final  decree 
until  the  cause  is  at  issue  as  to  all  the  parties  except  in  a  case 
where  the  issue  has  been  waived  or  there  has  been  default  for 
want  of  appearance  of  the  defendant  and  the  bill  is  taken  as 
confessed.     And  it  would  be  error  to  render  a  final  decree  in 
a  suit  at  issue  without  a  hearing  and  submission  of  the  cause.' 
It  has  been  held  to  be  the  better  practice  to  recite  in  the  de- 
cree that  the  case  has  regularly  matured  for  hearing,  "  but  it 
is  not  error  to  enter  a  decree  in  the  cause  not  showing  this,  if 
the  cause  was  in  fact  matured  for  hearing;"  and  further,  "  that 
it  was  not  necessary  to  state  in  a  decree  in  chancery  that  all 
the  preliminary  steps  toward  maturing  the  cause  were  taken, 

iNadd  V.  Powers.  136  Mass.  273;  fore  it  has  been  held  to  be  improper 

Cushman   v.   Bontield.   139   111.219;  to  hear  and  determine  the  cause  and 

Dayton    v.   Dayton,  68    Mich.    437;  render  a   decree    upon   the    merits 

Mitchell    V.    Moore,   95   U.    S.    587;  until  the  case  is  fully  at  issue  as  to 

Mackay  v.  Smith,  27  Wash.  442,  67  all  the  parties,  unless  the  issues  have 

Pac.  982;  Tenn.  Ice  Co.  v.  Raine,  107  been  waived  and  the  bill  taken  as 

Tenn  151    67  S.  W.  29;  Flanders  v.  confessed  as  to  them.     And  so  it  has 

Chamberlain.  24  Mich.   305;  Hill  v.  been   held   that  a   decree  rendered 

Phelps,  41  C.  C.  A.  569,  101  Fed.  650;  without  an  answer,  it  not  appearing 

Clinnin  V.  Raugh,  88  111.  App.  371;  that  the  bill  was  taken  as  confessed, 

Freeman  v.  Pullen,  130  Ala.  653,  31  should  be  set  aside  on  a  bill  of  re- 

So    451-    McClung    v.    Colwell,    107  view  for  apparent  error.     Braxton  v. 

Tenn.  59-',  64  S.   W.  890;    Evans  v.  Lee,  4  Hen.  «&  M.(Va.)  376;  Tedder  v. 

Kelly  49  W.  Va.  181,  38  S.  E.  497.  Stiles,  16  Ga.  1.     And  in   Groce  v. 

2  w'ilson  v.  Spring,  64  111.  17;  Ted-  Field,  13  Ga.  24,  it  was  held  to  be  in- 

der  V.  Stiles.  16  Ga.  1 ;  Hurtt  v.  Crane,  dispensable  to  a  decree  against  a  de- 

36  Md.  29;   Blair  v.  Reading,  96  111.  fendant  not  answering  that  the  bill 

130;  Rose  v.  Woodruff,  4  Johns.  Ch.  as  to  him  should  have  been  taken 

(N  Y  )  547      It  is  essential  that  the  pro  confesso.     Anthony  v.  Shannon, 

court  should  hear  and  determine  all  8  Ark.  52;  Hurtt  v.  Crane,  36  Md.  29. 

of  the  issues  in  the  case,  and  there- 


444  THE   DECREE.  [§  327 

it  being  intended,  where  the  cause  was  set  for  hearing,  that  it 
was  regularly  done,  unless  the  party  attempting  to  impugn  the 
decree  shows  the  contrary."^  But  where  the  decree  is  a  con- 
sent decree,  it  is  not  in  a  strict  sense  a  "judicial  sentence," 
but  is  rather  in  the  nature  of  a  contract  or  stipulation  by  the 
parties,  and  therefore  it  is  not  necessarily  confined  to  the 
issues  made  by  the  pleadings,  if  it  is  within  the  general  scope 
of  the  case  alleged  and  the  jurisdiction  of  the  court.  If  the 
decree  should  contain  provisions  outside  of  the  issues  raised  in 
the  pleadings  it  would  not  be  void. 

In  Pacific  Ry.  Co.  v.  Ketcham'^  the  court  say:  "Parties  to 
a  suit  have  the  right  to  agree  to  anything  they  please  in  refer- 
ence to  the  subject-matter  of  their  litigation,  and  the  court, 
when  applied  to,  will  ordinarily  give  effect  to  their  agreement, 
if  it  comes  within  the  general  scope  of  the  case  made  by  the 
pleadings."  And  further  held  that  the  parties  having  agreed, 
"  it  does  not  lie  with  them  to  complain  of  what  tlie  court  has 
done  to  give  effect  to  their  agreement."  But  the  court  will 
not  generally  make  a  decree  by  consent  where  an  infant  is  a 
party  to  the  cause  and  his  interests  are  concerned  in  the  de- 
cree, without  taking  testimony  or  referring  the  matter  to  a 
master  to  inquire  whether  it  will  be  for  the  benefit  of  the 
infant;  but  it  has  been  held  that  when  once  a  decree  is  pro- 
nounced without  that  previous  step,  the  infant  will  be  bound 
by  it.' 

If  the  decree  be  taken  pro  confesso,  either  for  want  of  the 
appearance  of  the  defendant  or  his  default  for  failure  to  de- 

1  Riggs  V.    Lookwood,    12  W.  Va,  plaint  is  to  inform  the  defendant  of 

133,  139.  the  nature  of  the  plaintiff's  case.     It 

2101  U.  S.  289,  297.  In  Fletcher  v.  is  for  his  protection  that  it  is  re- 
Holmes,  25  Ind.  458,  463,  the  court  quired.  If  he  wishes  to  waive  it.  or 
said:  "We  can  conceive  of  no  rea-  agrees  to  the  granting  of  greater  re- 
son  why  a  judgment  entered  by  lief  than  could  otherwise  be  given 
agreement,  by  a  court  of  general  under  its  averments,  without  amend- 
jurisdiction,  having  power  in  a  ment,  and  such  relief  is  given  by  his 
proper  case  to  render  such  a  judg-  consent,  we  think  that  the  judgment 
ment,  and  having  the  parties  before  is  not  even  erroneous,  much  less 
it,  should  not  bind  those  by  whose  void,  as  to  him."  Foster  v.  Foster, 
agreement  it  is  entered,  notwith-  126  Ala.  257,  28  So.  624;  Owens  v. 
standing  the  pleadings  would  not,  Barroll,  88  Md.  204,  40  Atl.  880. 
in  a  contested  case,  authorize  such  a  3 1  Barb.  Ch.  Pr.  373. 
judgment.      The  object  of  a  com- 


p   327  "1  THE   DECREE.  ^^^^ 

mur  plead  or  answer,  it  is  as  binding  and  conclusive  as  any 
decree  rendered  in  the  most  solemn  manner.     Formerly,  such 
a  proceeding  as  taking  a  bill  as  confessed  was  not  known;  for 
by  the  practice  of  the  equity  court  it  was  absolutely  necessary, 
in  order  to  give  to  the  court  jurisdiction  of  the  subject-matter, 
to  compel  the  defendant  to  appear  and  answer;  but  that  is  no 
lon-er  necessary.     As  we  have  seen,  the  court  may  proceed 
without  an  appearance  of  the  defendant;  or  if  he  has  appeared 
and  failed  to  properly  answer  or  defend  the  bill,  a  decree  may 
be  taken  against  him.    And  so  in  such  cases  it  is  not  requisite 
to  a  decree  that  the  parties  defendant  appear  in  the  cause,  hav- 
ino-  been  regularly  served  with  process;  ^  but  it  is  generally 
conceded  under  such  circumstances  that  the  proceedings  of  the 
court  must  be  regular  in  every  respect,  especially  as  giving  to 
the  court  jurisdiction  of  the  cause  and  the  parties.     For  irregu- 
larity appearing  in  the  proceedings  of  the  cause,  courts  will  set 
aside  a  decree  pro  cor^fesso  and  allow  the  defendant  to  answer 
the  bill  and  defend  the  case.     There  must  be  due  service  of 
process  upon  the  parties  defendant,  and  sufficient  time  must 
elapse  after  service  of  process  before  entering  the  default  ot 
the  defendant,  and  should  the  proceedings  be  defective  in  this 
respect  the  decree  would  be  set  aside  upon  the  failure  of  the  de- 
fendant to  appear,or,havingappeared,to  demur,  plead  or  answer. 

A  preliminary  order  taking  the  bill  as  confessed  under  the 
Eno-lish  practice,  and  that  followed  in  many  of  the  states,  is 
req'uired  before  a  final  decree  ^ro  confesso  can  be  rendered.  In 
some  of  the  states  such  an  order  is  regarded  as  an  indispensable 
prerequisite  to  a  decree. 

In  Georgia  it  was  held  to  be  reversible  error  where  a  decree 
had  been  tliken  without  an  ov<\ev  pro  confesso,  but  under  the 
code  practice  this  is  no  longer  required.^  But  where  it  appeared 
to  the  satisfaction  of  the  court  that  judgment ^ro  confesso  had 
been  duly  and  properly  taken  against  the  adult  defendants  in 
the  cause,  the  court  said :  "  This  sufficiently  shows  that,  in  tact, 
an  order  pro  confesso  had  been  taken,  and  warrants  the  belief 
that  the  failure  to  enter  it  was  clerical  misprision." » 

iThomsonv.Wooster,114U.S.lll,  2  Bennett   v.    Brown,    56   Ga.   216; 

citing  Ogilvie  V.  Heme,  13  Ves.  Jr.  Miller  v.  Wilkins,  79  Ga  67., 

563;  Bock  v.   Bock,  24  W.  Va.   586;  "Cole  v.  Johnson,  53  Miss.  94. 
Hunter  v.  Kennedy,  20  W.  Va.  343. 


446 


THE    DECKEE.  [§  327. 


In  New  York  by  chancery  rule  the  plaintiff  is  required,  on 
entering  an  ordor -pro  confesso,  to  file  an  aflSdavit  showing  the 
non-performance  of  the  defendant.' 

In  Michigan,  where  the  New  York  practice  has  generally 
been  followed,  it  was  held  that  although  good  practice  re- 
quired the  filing  of  an  affidavit  of  regularity,  its  omission  was 
not  error.  The  order  pro  confesso  is  entered  of  course  and  is 
an  interlocutory  order.'^ 

In  these  cases,  as  in  all  equitable  proceedings,  the  court  of 
chancery  aims  to  do  that  which  will  be  equitable  and  just,  and 
to  arrive  at  the  merits  of  the  cause,  and  there  is  no  doubt  a 
large  discretion  in  the  chancellor  which  will  be  exercised  to 
that  end.  The  principle  of  equity  that  it  will  retain  jurisdic- 
tion at  all  times  when  once  acquired,  and  give  such  relief  as 
will  finally  and  fully  dispose  of  the  controversy,  obtains  in  the 
matter  of  rendering  a  decree.  And  so  where  money  has  been 
illegally  obtained,  or  where  an  amount  of  money  in  justice 
and  equity  ought  to  be  paid  to  either  party,  the  court  of  equity 
will  not  hesitate  to  make  a  decree  even  to  the  extent  of  the 
payment  of  damages.'  And  where  it  appeared  that  the  de- 
fendants had  obtained  from  the  corporate  funds  of  a  city  an 
amount  of  money  upon  an  alleged  contract  to  furnish  an  elec- 
tric plant  for  the  city,  the  court  finding  that  the  contract  was 
void  and  enjoining  any  further  payment  thereunder,  there 
being  no  dispute  as  to  the  amount  of  money  which  the  city 
had  already  paid,  it  was  held  that  the  court  should  have  re- 
quired the  electric  light  company  to  account  for  the  money  it 

»Hoiie  V.   Scott.  Clarke  Ch.  457;  venience  of  the  jndge  only.    It  re- 

Nott  V.  Hill,  6  Paige  Ch.  (N.  Y.)  9.  quires  simply  that  evidence  should 

« Low  V.   Mills,  61    Mich.   35.    In  be  furnished  either  by  affidavit  or 

Johnson     v.    Johnson,    Walk.     Ch.  some  other  form  of  the  regularity  of 

(Mich.)  309,  it  was  held  that  wliere  the  proceedings. 

the  order  pro  confesso  was  entered  In  Smith  v.  Saginaw  City  Bank, 

two  days  before  the  expiration  of  Harr.  Ch.  (Mich.)  426,  the  Michigan 

time  allowed  to  answer,  it  was  pre-  court  held  that  where  the  defendant 

mature,  but  was  only  a  technicality  presents  an  answer  which  shows  a 

which    should    be    objected    to   at  defenseaftertheenteringof  an  order 

the  first  opportunity.     In  Ireland  v.  pro  confesso,  and  an  excuse  is  shown 

Woolman.  15  Mich.  253.  it  was  held  for  the  default,  the  court  will  per- 

that     the    aflBdavit     of    regularity  mit  him  to  file  the  answer  on  terma 

which  is  required  previous  to  taking  »Tate  v.  Field,  56  N,  J.  Ch.  36,  87 

a  bill  as  confessed  is  for  the  con-  AtL  44 


§  32S.]  THE    DECREE,  447 

had  so  received  and  ordered  it  to  refund  the  same  with  inte^ 
est  into  the  city  treasury;  that  this  was  necessary  in  order  to 
dispose  of  the  whole  controversy.' 

§  328.  The  frame  of  the  decree.— While  the  decree  in 
equity  corresponds  to  the  judgment  at  law,  it  is  not  so  formal, 
but  is  necessarily  flexible  and  elastic,  as  it  must  conform  to 
the  object  and  subject-matter  of  the  bill  in  the  particular  case. 
By  common  consent,  however,  a  decree  in  equity  consists  of 
three  and  sometimes  four  parts,  or  subdivisions.  (1)  The  cap- 
tion; (2)  the  recitals;  (3)  the  declaratory  part  (if  required), 
and  (4)  the  ordering  part  or  mandatory  clause. 

(1)  The  caption.  The  decree  should  begin  by  stating  the 
title  of  the  court  and  cause,  the  place  of  holding  the  court,  the 
date  at  which  the  decree  is  pronounced,  and  the  chancellor  or 
judge  who  is  presiding.  In  the  title  of  the  cause  the  parties 
should  have  the  same  designation  as  in  the  bill  of  complaint. 

(2)  The  recitals.  In  this  part  of  the  decree  it  was  formerly 
the  rule  in  the  English  chancery  court  to  set  out  the  pleadings  in 
the  cause,  the  evidence  and  all  former  proceedings,  but  this 
practice  no  longer  exists,  and  now  at  most  the  pleadings  are 
merely  named  and  the  fact  stated  that  the  proofs  have  been 
taken  and  are  considered.' 

>  George  v.  Electrio    Lt  Co.,  105  ter's  report,  or  in  depositions  taken 

Mich.  1,5;  Rickle  v.  Dow,  39  Mich,  as  the  law  requires,  or  in  exhibits,  or 

91;  Chase  v.  Boughton,  93  Mich.  285,  made  a  part  of  the  record  by  certifi- 

287;  In  re  Axtell  95  Mich.  244;  Zahn  cate  of  evidence.     Updike  v.  Parker, 

V.  McMillin.  198  Pa.  St.  20,  47  Atl.  976.  11  III  App.  35a     And  where  the  de- 

2  Durham  v.  Mulkey,  59  III.  91;  cree  especially  found  the  facts  on 
Mason  v.  Daly,  117  Mass.  403;  Judge  which  it  was  based,  it  was  held  not 
V.  Booge.  47  Mo.  544.  But  there  seems  to  be  invalidated  by  the  omission  of 
to  be  in  some  of  the  states  a  rule  of  the  evidence  from  the  record.  Ax- 
practice,  or  statutes,  making  it  neo-  tell  v.  Pulsifer,  155  III.  141,  39  N.  R 
essary  to  in  some  way  preserve  the  615;  Campbell  v.  Ayers,  6  Iowa,  339; 
facts,  and  if  they  are  not  preserved  Green  v.  Breckinridge,  20  Ky.  (4  T. 
in  a  way  to  make  them  a  record  in  B.  Mon.)  541.  And  where  a  decree 
the  cause,  then  the  decree  must  state  appears  to  be  based  upon  depositions 
generally  the  facts  upon  which  it  is  which  were  taken  and  filed  in  the 
based.  In  Bonnell  v.  Lewis,  3  III  App.  presence  of  all  the  parties,  but  omits 
283,  it  was  said  that  the  facts  upon  to  refer  to  such  depositions,  it  was 
which  the  decree  is  based  must  ap-  held  to  be  a  clerical  mistake  and 
pear  somewhere  in  the  record;  that  it  that  the  cause  should  have  been  con- 
was  not  essentially  necessary  that  sidered  as  having  been  heard  upon 
they  should  be  stated  in  the  decree  them  as  well  as  other  proofs.  Day  v. 
if  they  were  contained  in  the  mas-  Hale,  32  Grat  (Va.)  14G. 


448  THE   DECREE.  [§  328. 

The  reason  for  this  is  apparent.  All  the  pleadings  and  all 
the  proceedings  in  the  cause,  together  with  the  proofs,  are  of 
record,  and  may  be  referred  to  at  any  time;  therefore  it  would 
be  useless  to  embody  them  in  the  decree.  The  recital  may  be  as 
follows:  "  This  cause  having  come  on  to  behe;ird  upon  the  i)ill 
of  complaint  herein,  the  answer  thereto,  the  replication  of  the 
complainant  to  such  answer,  and  the  proofs  taken  in  said  cause 
(or  the  proofs  taken  in  open  court,  as  the  case  may  be),  and 
having  been  argued  by  counsel  for  the  respective  parties,  and 
the  couit  having  duly  considered  the  same,  it  is  ordered,"  etc. 

In  the  United  States  court  much  more  brevity  is  practiced. 
It  is  provided  by  rule  in  that  court  that:  "  In  drawing  up  de- 
crees and  orders,  neither  the  bill,  nor  answer,  nor  other  plead- 
ings, nor  any  part  thereof,  nor  the  report  of  any  master,  nor 
any  other  prior  proceeding,  shall  be  recited  or  stated  in  the 
decree  or  order;  but  the  decree  and  order  shall  begin,  in  sub- 
stance, as  follows:  'This  cause  came  on  to  be  heard  (or  to  be 
further  heard,  as  the  case  may  be)  at  this  term,  and  was  ar- 
gued by  counsel;  and  thereupon,  upon  consideration  thereof, 
it  was  ordered,  adjudged  and  decreed  as  follows,  namely.' " 
[Here  insert  the  decree  or  order,]  ^ 

In  Dexter  v.  Arnold.  5  Mason  (U.  of  examining  all  erfors  of  law,  the 
S.),  303,  311,  Judge  Story,  in  discuss-  bill,  answer  and  other  proceedings 
ing  the  subject  upon  a  petition  for  are,  in  our  practice,  as  much  a  part 
leave  to  file  a  bill  of  review,  says:  of  the  record  before  the  court  as  tlie 
"If,  therefore,  the  decree  does  not  decree  itself ;  for  it  is  only  by  a  corn- 
contain  a  statement  of  the  material  parison  with  the  former  that  thecor- 
facts  on  which  tlie  decree  proceeds,  rectuess  of  the  latter  can  be  ascer- 
it  is  plain  that  there  can  be  no  relief  tained.*' 

by  a  bill  of  review,  but  only  by  an        In  Clapp  v.  Thaxter,  7  Gray  (Mass.), 

appeal  to  some  superior  tribunal.    It  384,  387,  it  was  said:   "In  this  coun- 

is  on  this  account  that  in  England  try  it  is  not  ordinarily  the  practice 

decrees  are  usually  drawn  up  by  tlie  to  recite  in  the  decree  the  bill,  an- 

special  statement  of,  or  reference  to,  swer  or  pleadings,  but  these,  with 

the  material  grounds  of  fact  for  the  the  decree,  constitute  what  may  be 

decree.     In  the  courts  of  the  United  considered  the  record  of  the  cause." 

States  the  decrees  are  usually  gen-  But  in  Keiffer  v.  Barney,  31  Ala.  193, 

eral.  In  England  the  decree  embodies  it  was  held  that  "a  decree  pro  con- 

the  substance  of  the  bill,  pleadings  fesso  against  a   non-resident    must 

and  answers.     In  the  courts  of  the  state  the   facts  necessary  to  show 

United   States  the    decree    usually  that    publication    has     been    made 

contains  a  mere  reference  to  the  an-  agreeably  to  the  rules  of  practice." 

tecedent   proceedings   without    em-  j  Danl.  Ch.  PI.  &  Pr.  (4tl)  ed.)  1104. 
bodying  them.     But  for  the  purpose        lU.  S.  Eq.  Rule  86.     In  Kentucky 


THE   DECKEE. 


U9 


§  328.] 

(3)  77is  declaratory  part.  Where,  among  other  things,  the 
object  of  the  suit  is  to  obtain  a  declaration  of  the  rights  of  the 
parties  as  to  any  matter  in  controversy,  the  decree  should  con- 
tain such  a  declaration  as  a  preface  to  the  ordering  part  of  the 
decree.  The  reasons  for  the  decree  are  sometimes  declared  in 
this  clause,  but  no  declaration  of  rights  can  in  any  way  be 
binding  upon,  or  affect  the  rights  of  persons  not  made  parties  to 
the  suit,  except  such  rights  or  titles  in  the  thing  or  property 
involved  as  they  may  subsequently  obtain  from  the  parties 
brought  into  the  case.  Nor  will  the  rights  or  interests  of 
parties  who  were  not  served  with  process,  or  otherwise  brought 
tvithin  the  jurisdiction  of  the  court  in  the  particular  action,  be 
^ffected.     This  clause  of  a  decree  is  not  generally  used. 

(4)  The  ordering  part  or  mandatory  clause.  This  is  a  very 
important  part  of  the  decree  and  should  be  carefully  and  clearly 
set  forth.  In  this  part  the  specific  directions  of  the  court  are 
given  as  to  the  matter  in  controversy.  There  could  be  no 
fixed  or  settled  form  laid  down  as  to  this  clause;  it  must 
necessarily  be  different  in  each  case  according  to  the  questions 
involved.  It  has  been  said  that  "  nothing  is  more  elastic  and 
less  arbitrary  than  this  part  of  the  decree  in  equity.  The 
directions  to  the  different  parties  may  be  separate,  reciprocal, 
direct  or  inverted,  as  long  as  they  are  not  inconsistent.  If 
there  be  several  plaintiffs  suing  jointly,  the  decree  may  be 
joint  or  several,  in  conformity  with  their  respective  rights,  as 
finally  determined;  and  if  a  number  of  defendants,  a  single 
direction  may  be  given  to  all,  or  a  separate  direction,  or  even 
a  separate  decree  against  each."  ^ 

It  may  be  said,  however,  that  the  decree  must  order  that 
which  is  to  be  done  with  sufficient  certainty  to  be  a  guide  to 
the  persons  affected  by  it,  and  so  as  to  be  clearly  understood 
by  them.  If  a  specific  act  is  to  be  performed,  as  the  execution 
of  a  deed  or  other  document,  the  time  when  it  is  to  be  done 

it  was  held  that  a  decree  should  ing  the  decree  should  appear.  Bar- 
show  upon  its  face  what  the  court  clay  v.  Brown,  7  Paige  Ch.  (N.  Y.) 
decided.      Honore   v.    Colmesuil,   24  245. 

Ky.  (1  J.  J.  Marsh.^  506.    The  recitals  U  Foster's  Fed.  Pr.   (3d  ed.)  714, 

should  not  be  argumentative;  they  citing  Lingan  v.  Henderson,  1  Bland 

should  merely  state  the  conclusions  (Md.),  236,  275;  Hodges  v.  MuUikin,  1 

of  law  and  fact.     Day  v.  Dunham,  2  Bland  (Md.),  503,  507;  Elliott  v.  Pell, 

Johns.  Ch.  182.     The  time  of  enter-  1  Paige  Ch.  (N.  Y.)  26i 
29 


^50  THE    DECREE.  [§  329. 

should  be  specifically  stated;  if  for  an  accounting,  the  time 
from  which  the  account  is  to  be  stated.^ 

The  ordering  or  mandatory  clause  usually  commences  as  fol- 
lows: "It  is  therefore  ordered,  adjudged  and  decreed  that," 
etc.  Then  follows  the  direction  or  order  of  the  court  as  found 
and  determined  at  the  hearing. 

§  329.  Drawing  and  settling  the  decree. —  The  case  having 
been  heard,  the  judge  or  chancellor  announces  his  decision, 
and  the  party  in  whose  favor  the  decision  is  given  is  expected 
to  draft  a  decree  based  upon  the  opinion  or  decision  of  the 
court.  If  the  solicitor  for  the  part}'  in  whose  favor  the  cause 
is  decided  fails  to  draft  and  present  a  decree,  any  other  intep 
csted  party  may  do  so;  but  usually  it  is  drawn  by  the  solicitor 
of  the  party  in  whose  favor  the  cause  is  decided.^  The  usual 
and  proper  practice  is  to  make  a  cop}^  of  the  proposed  decree 
and  attach  it  to  a  notice  of  the  time  and  place  when  it  will 
be  settled  by  the  judge  or  chancellor  who  heard  the  cause,  and 
serve  this  copy  and  notice  upon  the  opposite  solicitor.  As  to 
the  time  of  notice  for  settling  the  decrees  the  practice  differs 
in  ditferent  jurisdictions.     There  should  be  at  least  a  reason- 

J  United  States  Equity  Rule  73  is  interest.     Morrison  v.  Smith,  1.30  111. 

as   follows:    "Every   decree  for  an  304,  23  N.  E  241;  Anderson  v.  Reed, 

account  of  the  personal  estate  of  a  11  Iowa,  177:  White  v.  Guthrie,  24 

testator  or  intestate  shall  contain  a  Ky.  (1  J.  J.  Marsh.)   503;   Clark   v. 

direction  to  the  master  to  whom  it  Bell,  34  Ky.  (4  Dana).  15;  Codwise  v. 

is  referred  to  take  the  same  to  in-  Taylor,  36  Teun.  (4  Sneed),  346.     As 

quire  and  state  to  the  court  what  to  erroneous   description,   Thain    v. 

parts,  if  any,  of  such  personal  estate  Rudisill,  126   Ind.  272,  26   N.  K  46; 

are   outstanding  or  undisposed  of.  Redhead  v.  Baker,  86  Iowa,  251,  53 

unless  the  court  shall  otherwise  di-  N.  W.  114     In  Maryland  it  was  held 

rect."    And   in   Illinois,   where  the  that  the  decree  might  refer  to  the 

decree    was    uncertain    as    to    the  bill  for  a  description  of  the  lands  on 

amount  of  money  to  be  paid  at  a  which  the  decree  is  to  operate.  Jones 

specified   time,  and  the  precise  in-  v.  Belt,  2  Gill  (Md.),  106. 
debtedness  did  not  seem  to  be  ascer-        '^  Hubbell  v.  Lankenau.  63  Fed.  881 ; 

tained,  the  decree  was  held  errone-  Rankin  v.  Barcroft.  114  111.  441,  3  N. 

ous.     Frye  v.  Bank  of  Illinois,  10  IIL  R  97.    In  Whitney  v.  Belden,  4  Paige 

(5  Gil.)  332;  Smith  v.  Trimble,  27  IIL  (N.  Y.),  140.  it  was  held  that  if  the 

(17  Peck),  152.     But  a  decree  for  re-  party  entitled  to  draw  the  order  neg- 

demption  on  payment  of  a  stated  lects  to  do  so  for  twenty-four  hours 

sum,  with  interest  at  six  per  cent,  after  the  decision  is  pronounced,  the 

from  a  certain  date,  was  held  not  to  other  party  may  apply  to  the  regis- 

be  fatally  erroneous  because  of  the  ter  to  draw  the  order  at  the  expense 

failure  to  state  the  amount  of  the  of  the  parties  applying. 


D  330.1  THE    DECREE.  4:0l 

able  time;  in  some  jurisdictions  it  is  fixed  at  four  days.^  If 
the  opposing  solicitor  has  any  objections  to  the  decree  as  drawn 
or  proposed,  he  should  prepare  amendments  in  writing  to  the 
same  and  present  them  to  the  court  and  opposite  solicitor  at 
the  time  noticed  for  settling  the  decree,  when  the  court  will 
consider  the  decree  which  has  been  drafted  and  the  proposed 
amendments  and  finally  determine  and  settle  the  same.  The 
court  may  at  this  time  amend  the  decree  that  has  been  drawn 
of  his  own  motion,  or  he  may  make  an  entire  new  draft  of  a 
decree.  When  the  decree  is  finally  settled  and  signed  by  the 
judge  or  the  chancellor  who  heard  the  cause,  it  will  be  filed  by 
the°register  or  the  clerk  of  the  court,  as  he  is  sometimes  called, 
in  his  office. 

§  330.  A  decree  after  the  death  of  the  party.— As  has  al- 
ready been  stated,  the  death  of  one  of  the  parties  in  a  chan- 
cery cause  operates  as  an  abatement  of  the  suit,  or  as  a  sus- 
pension of  all  proceedings  in  it,  for  the  reason,  as  we  have  seen, 
that  the  rights  and  interests  of  the  deceased  party  must  be 
represented  in  the  cause,  and  until  some  one  is  properly  au- 
thorized to  represent  such  interests  the  cause  cannot  proceed.^ 
But  where  the  cause  has  been  heard  and  determined  by  the 
court,  and  the  decree  has  been  drafted,  settled  and  signed  by 
the  chancellor,  there  can  be  no  reason  for  abating  the  cause, 
for  all  of  the  proceedings  before  the  court  in  which  the  interest 
of  the  party  could  be  affected  have  been  heard  and  are  at  an 
end.     And  where  a  cause  was  fully  heard  and  the  court  at  a 
subsequent  term  pronounced  his  decision  and  was  ready  to  find 
and  settle  the  decree,  but  it  was  then  ascertained  that  between 
the  time  the  cause  was  submitted  and  the  time  of  pronouncing 
the  decision  the  defendant  had  died,  it  was  held  that  to  enter 
a  decree  incorporating  an  order  in  it  requiring  it  to  be  entered 
nunc  pro  tu7ic  as  of  the  day  when  the  cause  was  heard  was 
strictly  regular.' 

In  a  divorce  case  where  the  husband  died  after  the  case  was 

1  Detroit,  etc.  Co.  v.  Renz,  33  Mich.  Campbell  v.  Mesier,  4  Johns.  Ch. 
298,  299;  2  Danl.  Ch.  PI.  &  Pr.  (4th  (N.  Y.)  334;  Wood  v.  Keyes,  6  Paige 
ed.)  1008:  1  Barb.  Ch.  Pr.  340.  (N.  Y.),  478;  Kelley  v.  Riley,  106  Mass. 

2  j^nte,  §  271.  339;  Tapley  v.  Goodsell,  122  Mass.  176 

3  Gunderman  V.  Gunnison,  39  Mich.  Mitchell  v.  Overman,  103  U.  S.  62 
313;  Davies  V.  Davies.  9  Ves.  Jr.  461;  Downer  v.  Howard,  44  Wis.  82 
Bank  v.  Weisiger,  2  Pet.  (U.  S.)  331;  Francis  v.  Francis,  31  Grat  (Va.)  283. 


4:52  THE    DECEEE.  [§  331. 

argued,  it  was  held  that  while  the  death  of  the  party  terminated 
the  marriage  relation,  "if  nothing  more  had  been  involved  in 
the  judgment  below,  it  would  have  abated  the  writ  of  error 
because  the  whole  subject  of  litigation  would  have  been  at  an 
end,  and  no  power  can  dissolve  a  marriage  which  has  already 
been  dissolved  by  act  of  God,"  But  it  appearing  that  the 
judgment  rendered  below  after  appearance  and  answer  of  the 
husband  was  not  only  for  a  divorce  but  for  a  large  sum  of 
alimony  and  for  costs,  the  wife's  right  to  such  alimony  and 
costs,  "though  depending  on  the  same  ground  as  the  divorce, 
was  not  impaired  by  the  husband's  death,"  and  should  not  be 
aflfected  by  the  dela}'  in  rendering  judgment;  the  court  there- 
fore ordered  that  the  rights  of  the  party  might  be  preserved 
by  entering  a  judgment  nunc  pro  tunc  as  of  the  day  when  the 
cause  was  argued.^ 

§  331.  Decrees  pro  coiifesso. —  When  the  cause  stands  upon 
an  order  jyr<?  confesso  it  must  be  brought  on  for  hearing  the 
same  as  other  cases,  and  good  practice  requires  that  an  affirm- 
ative showing  should  be  made  that  the  defendant  has  not  ap- 
peared in  the  cause,  if  the  default  is  for  that  reason,  and  if  the 
order  pro  confesso  appears  to  be  irregular,  the  subsequent  steps 
in  the  case  cannot  be  sustained. ^  At  the  hearing  of  the  cause 
the  court  will  hear  the  pleadings  and  the  proofs  and  make  a 
decree  as  in  other  cases;''  and  the  decree  having  once  been 
pronounced  and  settled,  cannot  be  impeached  collaterally  ex- 
cept on  a  bill  of  review.  It  is  said  that  the  court  will  be  less 
inclined  to  open  a  decree  ^ro  confesso  than  to  set  aside  one  ob- 
tained on  default  at  the  hearing.*  As  we  have  seen,  the  de- 
fendant who  has  appeared  in  the  cause  is  entitled  to  notice  of 
all  the  proceedings,  and  a  decree  taken  against  him  ex  parte 
without  notice  will  be  set  aside. 

The  court,  in  Detroit,  etc.  Ins.  Co.  v.  Renz^  say:  "Good 
practice  requires  that  a  defendant  who  has  appeared  in  the 
cause  should  have  such  notice  of  the  entry  of  the  decree  as  will 
afford  him  an  opportunity  to  attend  and  be  heard  upon  the 

1  Bell  V.  Bell,  181  U.  S.  175,  178.  <  Hart  v.  Lindsey,  Walk.  Ch.  (IVlich.) 

2  Eaton  V.  Eaton,  33  Mich.  305.  72. 

8 Geary  v.  Sheridan,  8  Ves.  Jr.  191;        533  Mich.  298;  Watson  v.  Hinch- 
1    Barb.    Ch.    Pr.    369;    Wooster  v.     man,  41  Mich.  716. 
WoodhuU,  1  Johns.  Ch.  (N.  Y.)  541. 


§  332.]  THE   DECREE.  453 

settlement  thereof."  And  it  has  been  held  without  dissent 
that  "  no  decree  will  be  entered  against  an  infant  on  a  bill 
taken  against  him  as  confessed,  or  on  the  answer  of  his  guard- 
ian ad  litem  admitting  the  facts  stated  in  the  bill.  The  an- 
swer in  such  case  is  regarded  as  a  pleading  merely,  and  cannot 
be  used  as  evidence  for,  or  against,  the  infant  against  whom 
the  complainant  must  prove  his  case."  ^ 

§  332.  Enrolment  of  decree. —  Until  the  decree  is  enrolled, 
it  does  not,  strictly  speaking,  become  a  record  of  the  court. 
The  court  may  treat  it,  after  it  has  been  duly  passed  and  en- 
tered, as  a  decree  in  the  consideration  of  other  proceedings, 
but  to  give  it  the  stability  and  nature  of  a  judgment  and  record 
of  the  court  in  the  cause  that  will  be  considered  as  settled,  it 
must  be  enrolled.  And  it  has  been  said  that  until  the  decree 
is  enrolled,  although  in  its  nature  it  is  a  final  decree,  it  is  con- 
sidered as  interlocutory  and  cannot  be  pleaded  in  bar  to  an- 
other suit  for  the  same  matter.^  Before  it  is  enrolled  it  is  sub- 
ject to  an  order  for  rehearing,  or  to  modification  by  the  court 
if  properly  applied  for,  but  once  enrolled  it  becomes  a  record 
of  the  court  and  is  not  subject  to  change  except  upon  bill  for 
review.  And  the  enrolment  cannot  be  prevented  by  the  op- 
posite party  except  by  taking  the  necessary  proceedings  for  a 
rehearing. 

The  manner  of  enrolment,  and  the  time  when  the  decree  is 
deemed  to  be  enrolled,  differs  in  different  jurisdictions.  For- 
merly in  the  English  chancery  court  the  solicitor  of  the  party 
desiring  an  enrolment  prepared  what  was  known  as  a  "docket 
of  enrolment,"  which  stated  the  filing  of  the  bill  or  petition, 
or  service  of  the  notice  of  motion  with  the  names  of  the  par- 
ties thereto,  setting  out  the  prayer  of  the  bill,  or  the  object 
of  the  notice  of  motion,  the  filing  of  the  several  answers  and 
all  the  other  pleadings  and  proceedings,  and  giving  a  short 
synopsis  of  the  decree,  setting  out  in  substance  the  order  made, 
and  the  orders  that  were  made  or  taken  before  the  date  of  the 

1  Thayer  V.  Lane,  Walk.  Ch.  (Mich.)  "It  is  well  settled  that  no  decree 

200,    202;     Bulkey    v.   Van  Wick,  5  can  be  made  against  an  infant  with- 

PaigeCh.  586;  Stephenson  V.  Stephen-  out  full  proofs  in  all  cases,  and  no 

son,  6  Paige  Ch.   358;    Chandler    v.  one    can    give    away  or     lose     his 

McKinney,   6   Mich.  217;  Carrell  v.  rights." 

Potter,  23  Mich.  377.  In    Ballantine  22  Danl.  Ch.  PI.  &  Pr.  1019;  Clapp 

V.  Clark,  38  Mich.  395,  the  court  say:  v.  Thaxter,  7  Gray  (Mass.),  385,  386. 


46i  THE    DECREE.  [§  332. 

decree  and  leading  to  it;  this  was  taken  with  the  originals  or 
office  copies  of  the  orders  and  proceedings  in  the  cause  recited 
in  the  docket  of  enrolment  to  the  clerk  of  records  and  writs, 
who  inspected  the  docket,  and  if  correct  indorsed  thereon  his 
certificate  that  the  statement  of  the  pleadings,  decrees,  orders, 
reports,  certificates  and  the  proceedings  therein  contained 
were  correct,  and  until  this  certificate  was  obtained  it  was  not 
entitled  to  enrolment.  This  practice,  however,  has  become 
very  much  simplified  by  statutes  and  by  the  rules  and  prac- 
tice of  the  several  courts.  In  some  of  the  states  the  enrolment 
is  made  by  simply  attaching  all  of  the  pleadings,  petitions,  or- 
ders  and  files  in  the  cause  together  in  the  order  in  which  they 
were  filed  or  obtained,  and  attaching  to  this  a  certificate  of 
the  register  that  they  are  the  files  and  records  in  the  cause, 
all  of  which  are  filed  in  the  office  of  the  register  of  the  court;  ^ 
while  in  other  courts  the  decree  is  considered  enrolled  after  it 
is  signed  by  the  chancellor  and  filed  by  the  register,  and  the 
term  of  the  court  in  which  it  was  made  has  elapsed.^  And  in 
other  jurisdictions  it  is  considered  enrolled  when  it  is  sub- 
mitted to  the  chancellor  and  signed  and  placed  on  the  records 
of  the  court.' 

In  the  United  States  court  it  is  provided  that:  "  No  rehear- 
ing shall  be  granted  after  the  term  at  which  the  final  decree 
of  the  court  shall  have  been  entered  and  recorded,  if  an  ap- 
peal lies  to  the  supreme  court.  But  if  no  appeal  lies,  the  peti- 
tion may  be  admitted  at  any  time  before  the  end  of  the  next 
term  of  the  court,  in  the  discretion  of  the  court."  *    This  rule 

1  Low  V.  Mills,  61  Mich.  35,27  N.  ZHollingsworth  v.  McDonald,  3 
W.  877;  Mickle  v.  Maxfield,  43  Mich.  Har.  &  J.  (Md.)  230,  3  Am.  Dec.  545; 
304.  But  decrees  of  the  supreme  Burch  v.  Scott,  1  Gill  &  J.  (Md. )  393. 
court  need  not  be  enrolled;  they  are  And  in  Nowland  v.  Glenn,  2  Md.  Ch. 
made  only  by  an  entry  on  the  jour-  368,  it  was  held  that  the  decree  is 
naL  Ryerson  v.  Eldred,  18  Mich.  490.  not  considered  enrolled  until  the 
It  is  provided  by  statute  that  if  no  close  of  the  term  at  which  it  was 
appeal  be  taken  from  the  final  de-  passed,  and  that  that  does  not  close 
cree  within  a  certain  time,  the  until  the  commencement  of  the  en- 
papers  and  proceedings  in  the  cause  suing  term.  Tabler  v.  Castle,  12  Md. 
shall  be  attached  together  and  signed  144 

and  filed  by  the  register,  and  this  ^Sagory  v.   Bayless,   21   Misa  (13 

shall  be  deemed  an  enrolment.    John-  Sm.  &  M.)  153. 

son  V.  Everett,  9  Paige  Ch.  (N.  Y.)  *  U.  a  Eq.  Rule  88. 
636;  Clapper  v.  House,  6  Paige,  149. 


§  333.]  THE    DECREE.  455 

seems  in  effect  to  take  the  place  of  the  usual  enrolment,  and 
it  would  seem  that  after  the  term  at  which  the  final  decree  of 
the  court  is  entered  and  recorded,  if  the  case  is  appealable  to 
the  supreme  court,  and  if  not  appealable  after  the  end  of  the 
next  terra  of  the  court,  the  decree  will  be  considered  as  en- 
rolled and  not  subject  to  change  or  rehearing  by  order  of  the 
court  granting  it. 

§  333.  Necessity  of  enrolment.—  The  necessity  of  the  en- 
rolment of  the  decree  seems  to  be  for  the  purpose  of  making 
it  a  record  of  the  court  and  removing  it  from  a  liability  to  be 
changed  upon  a  rehearing  by  order  of  the  court  which  made 
it.  Until  such  enrolment  has  been  made,  or  the  time  has 
elapsed  when  it  is  considered  as  a  record  of  the  court,  the 
cause  cannot  be  considered  in  every  respect  finally  settled  and 
the  decree  operative  and  final.^  And  it  has  been  held  that  the 
decree  must  be  enrolled  before  a  deed  can  be  executed  on  a 
sale  ordered  by  it;  and  where  the  bill  is  dismissed  with  costs, 
the  decree  must  be  enrolled  before  an  execution  can  issue 
under  it.'^  From  the  time  of  its  enrolment,  or  from  the  time 
Avhen  by  rule  of  court  or  statute  it  becomes  a  record  of  the 
court,  the  decree  may  be  said  to  be  in  force  and  capable  of 
being  executed.  It  has  been  said  that  "  the  advantage,  there- 
fore, to  be  obtained  by  the  enrolment  of  a  decree  is  to  pre- 
vent its  being  the  subject  of  a  rehearing,  and  to  enable  the 
party  benefited  by  it  to  plead  it  in  bar  to  any  new  bill  which 
may  be  filed  against  him,  for  any  of  the  matters  embraced  by 
the  bill  upon  which  the  decree  is  founded." '  Any  clerical 
mistakes  or  errors  which  may  be  said  to  arise  from  accidental 
slip  or  omission  may  be  corrected  at  any  time  before  enrol- 
ment on  motion  or  petition  and  without  applying  for  a  re- 
hearing.* 

1  Hall  V.  Hudson,  20  Ala.  284;  Hud-  Thompson  v.  Goulding,  6  Allen 
son  V.  Hudson,  20  Ala.  364,  56  Am.  (Mass.),  82.  United  States  Equity 
Dec.  200.  Rule  85  provides:  "Clerical  mistakes 

2  Minthorne's  Ex'rs  v.  Tompkins'  in  decrees  or  decretal  orders,  or  er- 
Ex'rs,  2  Paige  (N.  Y.),  102.  rors  arising  from  any  incidental  slip 

3  2  Danl.  Ch.  PI.  &  Pr.  (4th  ed.)  1019;  or  omission,  may,  at  any  time  before 
Neafie  v.  Neafie,  7  Johns.  Ch.  1;  an  actual  enrolment  thereof,  be 
Pearse  v.  Dobinson,  L.  R.  (Eng.)  1  Eq.  corrected  by  order  of  the  court  or  a 
241.  judge  thereof,  upon  petition,  with- 

<2Danl.  Ch.  PL&Pr.  (4thed.)1028;  out  the  form  or  expense  of  a  re- 
Turner   V.    Hodgson,    9    Beav.    265;     hearing." 


456  THE    DECREE.  [§  334. 

§  334.  Some  changes  the  court  is  permitted  to  make. — 

By  the  enrolment  of  the  decree  or  the  consummation  of  that 
which  the  practice  of  the  courts  regards  of  like  force  and  im- 
portance, and  operating  as  an  enrolment,  the  cause  is  consid- 
ered as  finally  determined.  This  enrolment,  it  is  said,  "is  a 
permanent  memorial  of  the  rights  of  the  parties  as  adjudicated." 
But  it  has  been  held  that  further  orders  which  merely  give  di- 
rections for  carrying  out  or  executing  the  decree,  as  the  chang- 
ing of  the  time  or  terms  of  a  sale  of  property  necessary  to 
carry  a  decree  of  partition  into  effect,  may  be  obtained  on  mo- 
tion in  the  court  which  granted  the  decree.  And  where  a 
party  sought  to  extend  the  time  of  payment  of  alimony  granted 
in  a  decree  of  divorce,  it  was  held  that  as  it  was  merely  a  modi- 
fication as  to  the  time  of  enforcement,  it  might  be  granted,  but 
whenever  the  modification  of  the  substance  of  the  decree  is 
sought,  the  court  which  granted  the  decree  has  no  authority 
to  so  modify  it.  The  court  say:  "While  the  court  has  not, 
after  enrolment,  power  to  amend  the  decree  without  a  re- 
hearing, it  retains  the  power  to  modify  by  a  subsequent  order 
the  time  of  its  enforcement.  .  .  .  We  do  not,  however,  find 
that  the  original  decree  required  complainant  to  furnish  an  ab- 
stract, and  think  that  this  requirement  was  a  modification  in 
substance  of  the  decree."  ^ 

In  New  Jersey  the  court  seems  to  have  gone  still  farther 
and  held  that  on  a  petition  to  amend  the  decree  after  enrol- 
ment, where  it  appeared  that  the  amendment  was  necessary  to 
give  full  expression  to  the  judgment  of  the  court,  and  is  mat- 
ter which  would  have  been  incorporated  in  the  decree  when 
rendered  if  the  attention  of  the  court  had  been  called  to  it, 
the  court  will  grant  an  order  allowing  the  decree  to  be 
amended  so  as  to  express  its  full  judgment.  The  court  say: 
"  Respecting  such  an  amendment,  the  rule  recognized  by  this 
court  is  that,  while  the  court  will  not  vary  or  alter  an  enrolled 
decree  in  a  material  point  without  a  bill  of  review  or  a  rehear- 
ing, it  will,  upon  petition,  amend  its  enrolled  decree  when  the 
amendment  is  necessary  to  give  full  expression  to  its  judgment, 
and  is  matter  which  would,  without  doubt,  have  been  incor- 

iCadotte  v.  Cadotte,  120  Mich.  667,  670. 


§  335.]  THE   DECREE.  457 

porated  in  the  decree  when  made,  if  attention  had  been  called 
to  it." ' 

But  while  the  rule  seems  to  be  that  as  to  mere  matters  of 
direction  or  immaterial  mistakes  or  omissions,  the  decree  may 
be  corrected  by  the  court  which  granted  it,  the  general  rule  is 
conceded  to  be  that  the  decree  after  enrolment  cannot  on 
motion  or  petition  be  altered,  set  aside,  vacated  or  modified 
by  the  court  allowing  it,  but  is  conclusive  until  reversed  on 
appeal  or  set  aside  on  a  bill  of  review.  The  substance  of  the 
decree  cannot  be  changed;  the  matters  and  questions  deter- 
mined by  it  must  remain  after  it  is  enrolled  until  they  are  set 
aside  by  appeal  or  bill  of  review.^ 

§  335.  Reopening  the  cause  —  Rehearing. —  After  the  cause 
has  been  heard  and  the  decree  has  been  settled  and  entered  and 
before  it  has  been  enrolled,  or  has  by  the  rules  and  practice  of 
the  court  become  a  record  in  the  cause,  it  may,  under  certain 
circumstances,  be  reopened,  but  this  can  only  be  done  by  con- 
sent of  the  parties  or  upon  an  application  for  a  rehearing.  This 
practice  is  not  limited  to  decrees  granted  upon  the  hearing 
of  the  cause  upon  its  merits,  but  is  also  applicable  where  the 
decree  has  been  obtained  upon  a  demurrer  or  a  plea,  and  in 
some  cases  where  the  order  of  the  court  is  for  further  direc- 
tions as  to  the  execution  of  the  decree,  or  upon  exceptions  to 
the  report  of  a  commissioner  or  master.  This  proceeding  is 
analogous  to  a  motion  for  a  new  trial  in  a  law  case,  but  when 
the  cause  is  once  enrolled,  or  by  reason  of  the  rules  and  prac- 
tice of  the  court  has  become  a  record  in  the  cause,  it  is  not 
subject  to  this  proceeding,  and  the  decree  can  only  be  opened 
and  rectified  upon  filing  a  bill  of  review.  It  is  generally  held 
that  a  court  has  control  of  its  own  judgments  and  decrees  be- 
fore enrolment,  and  where  a  decree  has  been  improperly  ob- 
tained there  is  an  inherent  power  in  the  court  which  rendered 
it  to  open  the  decree  for  good  cause  shown.' 

1  Lynde  v.  Lynde,  54  N.  J.  Eq.  473,  3  Dinamore  v.  Adams,  48  How.  Pr. 
35Atl.  641;  Dorsheimer  v,  Rorback,  (N.  Y.)  274;  Gibson  v.  Crehore,  22 
24  N.  J.  Eq.  33;  Jarman  v.  Wiswall,  Mass.  (5  Pick.)  146;  Smith  v.  Sneed, 
24  N.  J.  Eq,  68;  Jones  v,  Davenport,  3  Tenn,  (Cooke),  100.  And  where  the 
45  N.  J.  Eq.  83,  17  Atl.  570.  consent  decree  had  been  entered  and 

2  Schwartz  V.  Castello,  11  App.  D.  C.  the  party  knew  what  the  decree 
553.  was,  and  there  were  no  misrepresen- 


458  THE   DECREE.  [§  336. 

In  Brown  V.  Aspden^  the  court  say:  "By  the  established 
rules  of  chancery  practice,  a  rehearing,  in  the  sense  in  which 
that  term  is  used  in  proceedings  in  equity,  cannot  be  allowed 
after  the  decree  is  enrolled.  If  the  party  desires  it,  it  must  be 
applied  for  before  the  enrolment."  But  a  decree  taken  by 
consent  of  the  parties  can  only  be  reopened  b}'^  the  same 
authority  —  that  is  to  say,  upon  consent  of  the  parties.^ 

§  336.  The  practice  and  reasons  for  granting. —  The  prac- 
tice in  obtaining  a  rehearing  in  a  chancery  cause  after  a  decree 
and  before  its  enrolment  is  similar  to  the  practice  for  obtain- 
ing a  new  trial  in  law  cases,  and  may  be  in  some  respects  for 
the  same  causes.  It  is  usually  presented  to  the  court  by  a 
petition  for  a  rehearing,  and  may  be  for  newly-discovered 
evidence  or  errors  of  law  which  appear  upon  the  record,  and 
it  has  been  said  that  "all  the  limitations  which  control  courts 
in  actions  at  law  in  considering  allegations  of  newly-discovered 
evidence  and  of  errors  at  law  apply  to  applications  for  rehear- 
ing in  such  cases.'"  The  petition  should  be  filed  with  the 
register  or  clerk  of  the  court,  and  in  some  jurisdictions  an 
order  is  obtained  from  the  court  upon  the  defendant  to  show 
cause  why  the  prayer  of  the  petition  should  not  be  granted. 
This  is  the  usual  practice  in  the  United  States  courts.  The 
defendant  may  answer  the  petition,  and  upon  the  petition  and 
answer  the  application  is  heard.  In  this  proceeding  it  must 
be  borne  in  mind  that  "  a  rehearing  can  only  take  place  for 
the  purpose  of  altering  the  decree  upon  grounds  which  existed 
at  the  time  when  the  decree  was  pronounced."*  It  therefore 
follows  that  where  the  grievance  is  consequent  upon  circum- 
stances which  have  transpired  since  the  rendering  of  the  de- 

tations  made  in  obtaining  it,  it  was  fraud.     Rollins  v.  Henry,  78  N.  C.  342. 

held  that  a  rehearing  was  properly  And  in  Watson  v.  Smith,  7  Oreg.  448, 

denied.     Hodges  v.  McDuff,  76  Mich,  it  was  held  that  where  the  consent 

305.  of  one  of  the  parties  was  obtained, 

1 14  How.  (U.  S.)  26;  Giant  Powder  the    party    not    understanding    its 

Co.  V.  Cal.  etc.  "Works,  5  Fed.  197.  effect   because  of  his  weakness  of 

*  White  V.  Walker,  5  Fla.  478.     In  mind  on  account  of   old   age,   the 

Hammond  v.  Place,  Harr.  Ch.  (Mich.)  court  will  open  the  decree  to  protect 

438,  it  was  held  that  a  rule  entered  his  rights. 

by  consent  would  not  be  vacated  if  3 Giant    Powder  Co.   v.   Cal.    etc. 

obtained  without  fraud  or  misrepre-  Works,  5  Fed.  197,  209. 

sentation;  it  may,  however,  be  im-  <1  Barb.  Ch.  Pr.  (2d  ed.)  854, 
peached   by    privies    in    estate    for 


§  33G.] 


THE    DECREE.  ^^" 


cree,  a  rehearing  will  not  be  permitted,  for  such  facts  had  no 
existence  at  the  time  of  the  hearing  and  were  not  put  in  issue 
by  the  pleadings  in  the  cause,  and  therefore  could  not  have 
been  brou-ht  to  the  attention  of  the  court.  The  proper  course 
in  such  cale  is  to  obtain  leave  to  file  a  supplemental  bill  in  the 
nature  of  a  bill  of  review. 

The  petition  for  rehearing  upon  newly-discovered  evidence 
should  show  that  the  testimony  is  material  and  not  merely 
cumulative,  and  that  with  reasonable  and  ordinary  care,  atten- 
tion and  diligence  it  could  not  have  been  procured  at  the  hear- 
ing of  the  cause,  and  that  it  has  been  discovered  since  the  hear- 
in°,  submission  and  decision  of  the  case,  and  the  testimony 
must  be  such  that  in  the  opinion  of  the  court,  if  it  had  been 
produced,  it  would  probably  have  materially  changed  the  de- 
cree granted,  to  the  benefit  or  advantage  of  the  petitioner.  And 
it  has  been  said  that  in  determining  whether  such  care,  atten- 
tion and  diligence  was  exercised,  the  physical  and  pecuniary 
condition  of  the  party  will  be  considered,  and  also  the  infor- 
mation or  knowledge  which  the  petitioner  then  had  of  the  es- 
sential facts  or  defense,  and  in  the  light  thereof  the  difficulties 
likely  to  be  encountered  in  tracing  up  and  establishing  the 
same  by  competent  testimony.^     For  it  is  a  general  rule  that 
a  rehearing  will  not  be  granted  for  newly-discovered  evidence 
where  by  reasonable  diligence  the  evidence  could  have  been 
obtained  on  the  hearing.- 

When  the  rehearing  is  asked  for  upon  the  ground  that  there 
was  error  of  law,  it  must  appear  by  the  petition  and  by  the 

1  Detroit  Savings  Bank  v.  Trues-  a  rehearing,  that  there  have  been  dis- 
dail  38  Mich.  444.  covered  new  facts  or  precedents,  or 

2  In  Bently  v.  Phelps,  3  W.  &  M.  that  there  has  been  some  specific 
m  S  C  C)  403,  406,  it  was  said:  mistake.  And  where  the  decree  was 
"  Generally  as  much  must  be  shown  granted  upon  the  testimony  of  the 
to  iustify  a  rehearing  in  equity  as  is  complainant  alone,  and  a  rehearing 
necessary  to  obtain  a  new  trial  at  was  asked  upon  a  showing  of  newly- 
common  law."  Doggett  v.  Emerson,  discovered  evidence  that  the  com- 
IW  &M  (U  S  C.C.)1.  And  in  Tufts  plainant  had  made  statements  con- 
V  Tufts  3  W  &  M.  (U.  S.  C.  C.)  426,  tradicting  his  evidence  in  material 
it  was  held  that  a  rehearing  will  points  in  such  a  way  as  to  be  decisive 
not  be  granted  merely  on  certificate  of  the  case,  it  was  held  the  relieanng 
of  counsel  stating  that  there  was  er-  should  be  granted.  Sheldon  v.  Hawes, 
ror  in  law  on  a  particular  point;  that  15  Mich.  519. 

it  must  be  shown,  in  order  to  justify 


460  THE   DECREE.  [§  337 

evidence  adduced  that  the  error  was  not  made  as  to  some  ques- 
tion that  was  presented  and  argued  by  counsel  and  considered 
by  the  court  at  the  final  hearing,  for  a  rehearing  will  not  be 
granted  simply  to  allow  a  reproduction  of  old  arguments 
which  have  already  been  considered;  advantage  of  errors  as  to 
matters  which  have  already  been  presented  and  considered 
can  only  be  taken,  and  the  questions  decided  at  the  hearing 
reconsidered,  upon  an  appeal.' 

§  337.  Reopening  decrees  taken  pro  confesso  and  permit- 
ting defense. —  The  reasons  for  setting  aside  a  decree  taken 
jpro  confesso  and  allowing  the  defendant  to  be  heard  in  his  de- 
fense include  the  reasons  already  given  for  a  rehearing  and 
other  reasons  to  be  discussed.  In  this  proceeding  the  peti- 
tioner is  generally  limited  to  decrees  that  have  not  been  en- 
rolled, or  which  have  not,  by  the  rules  and  practice  of  the 
court,  become  records  in  the  cause.  It  would  be  difficult  to 
lay  down  any  fixed  or  settled  rules  governing  the  reopening 
of  decrees  which  have  been  regularly  obtained  by  default. 
These  cases  generally  rest  in  the  sound  discretion  of  the  court, 
having  in  view  the  promotion  of  the  ends  of  justice  and  at  the 
same  time  the  rules  of  law  and  practice  that  have  been  settled 
by  a  long  line  of  well-settled  adjudicated  cases.^ 

In  Russell  v.  Waite^  the  chancellor  said:  "No  general  rule 
can  be  laid  down  by  the  court  to  govern  it  in  applications  of 
this  kind.  Each  application  must  depend,  in  a  great  measure, 
upon  its  own  circumstances  and  the  sound  discretion  of  the 
court.  A  decree  regularly  obtained  against  a  party  by  default 
should  not  be  opened,  unless  under  special  circumstances,  and 
then  only  to  promote  the  ends  of  justice."  And  it  has  been 
held  that  a  decree  pro  confesso  will  not  be  set  aside  on  mere 
technical  irregularities  which  do  not  affect  the  merits  and  are 

1  Giant  Powder  Co.  v.  Cal.  etc.  depends  upon  the  situation  and  cir- 
Works,  5  Fed.  197.  cumstances  of  the  case."     Brewer  v. 

2  In  Low  V.  Mills,  61  Mich.  35,44,  Dodge,  28  Mich.  359;  Dunn  v.  Keegin, 
the  court  say:  "  It  is  well  settled  that  3  Scam.  (111.)  S97;  Millspaugh  v.  Mc- 
opening  a  decree,  and  permitting  a  Bride.  7  Paige  (N.  Y.),  512;  Wooster  v. 
defendant  to  come  in  and  defend,  is  WoodhuU,  1  Johns.  Ch.  539. 

a  matter  within  the  sound  discretion  3  Walk.  Ch.  (Mich.)  31;  Stradley  v. 

of  the  court,  when  applied  for  within  Circuit  Judge.  96  Mich.  287,  55  N.  W, 

a  reasonable  time.  Whether  it  should  807:  Mills  v.  McLeod.  86  Mich.  290,  49 

be  done  by  bill  of  review  or  petition  N.  W.  134;  Low  v.  Mills,  61  Mich.  41. 


§  337.] 


THE   DECREE. 


461 


not  grounds  for  setting  aside  a  decree  unless  complained  of  at 
the  first  opportunity.^ 

The  practice  in  the  state  and  federal  courts,  in  cases  where 
the  order  or  decree  is  sought  to  be  changed,  altered  or  set  aside 
after  the  term  at  which  it  was  granted  is  passed,  or  after  en- 
rolment of  the  decree,  or  after  it  has  become  a  record  of  the 
court,  is  very  much  in  conflict.  In  the  state  courts,  generally,^ 
an  order  pro  covfesso,  or  a  decree  taken  upon  such  an  order, 
may  be  set  aside  and  the  defendant  permitted  to  appear  and 
defend  where,  by  his  petition  and  showing,  it  appears  that 
there  has  been  irregularity  in  the  proceedings,  and  where  to 
permit  it  to  stand  would  be  permitting  great  injustice;  or 
upon  a  proper  showing  of  surprise,  mistake  or  accident;  or 
where  the  rights  and  interests  of  strangers  to  the  record  have 
not  been  heard  or  protected.'^     In  the  federal  court,  however, 


1  Johnson  v.  Johnson,  Walk.  Ch, 
(Midi.)  309;  Long  v.  Long,  59  Mich. 
296.  Nor  will  a  decree  be  set  aside 
on  mere  motion.  York  v.  Circuit 
Judge,  57  Mich.  421;  Hart  v.  Lindsay, 
Walk.  Ch.  (Mich.)  72. 

2  Kelly  V.  Brooks,  57  Miss.  225; 
Low  V.  Mills,  61  Mich.  35.  In  Strib- 
ling  et  ux.  v.  Hart,  20  Fla.  235, 
248,  the  court  say:  "There  are  a 
number  of  cases  where  enrolments 
are  opened  upon  cause  shown  to  al- 
low an  appeal.  2  Smitli's  Ch.  Pr., 
sees.  7,  8,  9.  23,  24.  As  to  the  power, 
we  are  inclined  to  follow  the  Ameri- 
can practice,  for  there  should  be 
some  method  in  cases  of  defaults 
arising  from  unavoidable  circum- 
stances to  afford  relief  even  as 
against  an  absolute  decree.  Unless 
there  is  some  peculiar  operation  in 
the  rule  pronouncing  the  decree 
"absolute"  after  the  expiration  of 
the  time  limited,  we  think  the 
American  authorities  show  that  the 
court  has  power  to  relieve  in  a 
proper  case.  A  decree  absolute  is 
nothing  more  than  a  final  decree 
following  a  decree  nisi  causa  when 
no  cause  is  shown,  and  there  is  no 
difference,  and  there  is  no  greater 


solemnity  or  inviolability  attached 
to  it  than  to  any  other  final  decree. 
The  power,  however,  is  not  to  be  ex- 
ercised in  cases  where  the  decree 
has  been  made  absolute  in  the  regu- 
lar course,  and  where  the  defendant 
has  been  guilty  of  neglect  and  has 
failed  to  give  attention  to  the  pro- 
cess of  the  court  without  the  exist- 
ence of  controlling  and  unavoidable 
circumstances  excusing  his  delay. 
The  entry  of  such  a  decree  against 
a  party  is  not  to  be  regarded  as  a 
light  matter.  Under  the  rule  the 
setting  aside  of  an  order  taking  the 
bill  for  confessed  will  not  be  allowed 
except  upon  cause  shown  and  affi- 
davit. We  think  the  remarks  of  the 
court  of  appeals  of  Maryland  (54  Md. 
6b9)  upon  this  subject  are  eminently 
proper.  The  court  says  the  object  of 
the  statute  (the  law  authorizing  de- 
crees pro  confesso)  was  to  provide 
a  just  and  reasonably  expeditious 
mode  of  obviating  the  delays  and 
difiSculties  to  which  complainants 
were  subjected  by  the  neglect  of  de- 
fendants and  their  disobedience  of 
the  mandates  of  the  court,  and  no 
construction  of  the  statute  should  be 
indulged  that  would  either  reward 


4G2  THE    DECREE.  [§  337. 

this  matter  is  regulated  by  rule  of  the  court  to  which  the  fed- 
eral courts  have  strenuously  adhered,  and  when  the  decree  of 
that  court  has  been  entered  and  the  term  at  which  it  was  en- 
tered has  passed,  although  it  be  a  decree  j^^-c*  confesso  it  is  final 
and  beyond  the  power  of  the  court  which  rendered  it  to  alter 
or  change  it,  or  set  it  aside  even  to  allow  a  defense  upon  the 
merits  of  the  cause;  and  the  federal  courts  have  refused  to  en- 
tertain a  petition  for  that  purpose  even  where  it  was  shown 
that  great  injustice  would  be  the  result  if  the  defendant  was 
not  allowed  to  appear  and  defend  the  cause. 

The  rule  governing  in  this  class  of  cases  is  as  follows :  "  When 
the  bill  is  i^Ven  pro  confesso  i\\Q  court  may  proceed  to  a  decree 
at  any  time  after  the  expiration  of  thirty  days  from  and  after 
the  entry  of  the  order  to  take  the  bill  pro  confesso^  and  such 
decree  rendered  shall  be  deemed  absolute,  unless  the  court 
shall,  at  the  same  term,  set  aside  the  same,  or  enlarge  the  time 
for  filing  the  answer,  upon  cause  shown,  upon  motion  and  aflB- 
davit  of  the  defendant."  '  In  these  proceedings  the  plaintiff 
is  insisting  upon  the  advantage  he  has  obtained  because  of  the 
default  of  the  defendant;  he  is  asking  the  court  to  allow  him 

or  encourage  defeudants  in  their  con-  produced  must  show  deceit,  surprise 
tumacious  neglect  of  tlie  process  of  or  irregularity  in  obtaining  the  judg- 
the  court  when  duly  served  upon  ment  or  decree  and  that  the  defend- 
them.  Decrees  are  not  lightly  to  be  ant  has  acted  bona ^de and  with  rea* 
disturbed  or  vacated  after  enrol-  sonable  diligence." 
ment,  though  entered  upon  default  ^  U.  S.  Eq.  Rule  19;  Austin  v.  Riley 
of  the  defendants,  and  it  is  only  when  et  al.,  55  Fed.  833.  In  this  case  may  be 
there  are  strong  and  special  circum-  found  a  very  full  discussion  upon  this 
stances  shown  and  the  conduct  of  subject  and  also  citation  of  authori- 
the  party  applying  is  entirely  free  ties.  This  was  a  case  where  a  final 
from  well  grounded  imputation  of  decree  was  entered  upon  a  bill  taken 
laches  or  mala  fides  that  his  applica-  pro  confesso.  The  motion  to  set  aside 
tion  will  be  entertained  and  the  dis-  the  decree  was  made  after  the  ex- 
cretion of  the  court  exercised  in  his  piration  of  the  term  at  which  it  be- 
favor,  and  the  discretion  to  be  exer-  came  absolute.  It  was  urged  that  a 
cised  upon  such  application  must  be  different  decree  would  have  been 
regulated  by  law  and  precedent  and  entered  if  the  facts  had  been  pre- 
not  a  mere  desire  to  let  in  a  defense  sented  by  a  timely  defense,  or  it  was 
upon  the  merits.  It  is  a  mistake  to  shown  that  extreme  hardship  would 
conceive  that,  because  a  party  is  in  a  result.  The  court  held  that  the  prac- 
court  of  equity,  less  weighty  reasons  tice  of  the  state  court  will  not  be 
will  excuse  his  default  when  he  asks  observed  in  a  suit  in  equity  in  a  fed- 
to  open  a  decree  in  equity  than  is  eral  court ;  that  Revised  Statutes,  sec. 
necessary  to  open  a  judgment  by  de-  914,  does  not  apply  to  equity  causes, 
fault  at  law.   In  either  case  the  facts  and  that  the  federal   court  has  no 


THE    DECREE.  463 


§  337.] 

this   advantage   for  the    reason  that  the  defendant  has  not 
strictly  followed  the  rules  of  practice.     While  the  court,  be- 
cause of  this  rule,  will  permit  this  advantage,  it  will  require 
that  the  plaintiff  shall  have  followed  the  practice  and  regu- 
larly obtained  the  decree.     As  said  by  Chancellor  Hardwicke 
in   a   very   early  case,i   "if   there   is  an  irregularity  in  the 
proceedings   of   the   plaintiff,  and  the  plaintiff  insists   upon 
the  strict  default  of  the  defendant,  as  the  courts  of  law  say, 
it  is  very  necessary  a  person  insisting  upon  the  rigor  '  should 
hit  the  bird  in  the  eye ' "  —  that  is  to  say,  the  plaintiff  will  not 
be  permitted  himself  to  be  in  fault  or  irregular  in  his  proceed- 
ings, but  the  proceedings  in  his  case  must  be  regular  if  he 
would  take  advantage  of  the  irregular  practice  and  faults  of 
his  adversary.     Some  of  the  irregularities  that  have  been  con- 
sidered sufficient  to  set  aside  a  decree  pro  confesso  and  permit 
the  defendant  to  come  in  and  defend  the  case  are:  for  defect- 
ive service  of  process,  personal  or  by  publication;  for  defects 
in  the  copy  of  the  subpoena  served  upon  the  defendant;  for 
failure  to  serve  the  rule  to  answer  where  that  practice  obtains; 
for  failure  to  serve  notice  of  hearing  upon  the  defendant  who 
has  regularly  appeared  in  the  cause;  for  proceedings  against  a 
resident  defendant,  upon  whom  personal  service  might  have 
been  obtained,  as  though  he  were  an  absent  defendant.^ 

jurisidction  of  a  motion  to  set  aside  proceeding  against  him  and  before 
a  final  decree  upon  a  bill  taken  as  an  actual  sale  to  a  bona  fide  pur- 
confessed  which  was  made  after  the  chaser  under  the  decree,  it  will  be  a 
term  at  which  the  decree  became  matter  of  course  to  permit  him  to 
absolute.  come  in  and  defend,  without  charg- 
1  Floyd  V.  Nangle,  3  Atk.  (Eng.)  ing  him  with  any  costs.  But  in  a 
ggg  5^9  case  of  mere  unintentional  irregular- 
2'ln  Jermain  v.  Langdon.  8  Paige  ity,  the  party  who  wishes  to  take  ad- 
Ch.  (N.  Y.)  41,  43,  the  court  say:  vantage  of  it  must  apply  the  first 
•There  can  be  no  doubt,  however,  opportunity,  unless  he  can  satisfy 
that  it  is  clearly  irregular  to  proceed  the  court  that  he  has  been  deprived 
against  a  partv,  as  an  absentee,  who  of  some  substantial  right,  either  legal 
has  a  fixed  and  notorious  residence  or  equitable,  in  consequence  of  such 
in  the  state;  and  who  is  neither  ab-  irregularity." 

sent  therefrom  nor  concealed  so  that        As  to  defective  service  of  process 

process  cannot  be  served  on  him.   In  being  ground  for  opening  a  decree 

such  a  case,  therefore,  if  the  defend-  and  allowing  the  defense  to  be  made, 

ant  applies  for  leave  to  come  in  and  Welch  v.  Welch,  16  Ark.  527;  Bene- 

defend  the  suit,  the  first  opportunity  diet  v.  Auditor-General,   104  Mich, 

he  has  after  he  is  informed  of  the  269,  62  N.  W.  364.     But  in  Gould  v. 


464 


THE    DECREE. 


[§  337. 


Where  the  defendant  seeks  to  set  aside  an  order  pro  confesso, 
he  should,  with  his  application,  exhibit  his  proposed  answer  if 
allowed  to  defend  the  cause.^ 

In  Stockton  v.  Williams^  the  court  say:  "A  regular  order  to 
take  the  bill  as  confessed  will  not  be  set  aside  upon  a  simple 
affidavit  of  merits,  although  an  excuse  is  given  for  the  default. 
In  such  cases  the  defendant  must  either  produce  the  sworn 
answer  which  he  proposes  to  put  in,  so  that  the  court  may  see 
that  he  has  merits,  or  must,  in  his  petition  or  affidavit,  state 


Castle,  47  Mich.  604.  the  defendant 
was  held  guilty  of  gross  laches  and 
in  default  in  lying  by  and  not  mov- 
ing on  his  own  contention  in  regard 
to  the  defect  of  the  process  where 
he  disregarded  the  subpoena  served 
upon  him  and  permitted  the  pro- 
ceedings to  go  to  a  decree  merely 
because  the  copy  served  did  not  give 
the  date  of  the  return  day.  and  his 
mot  on  to  set  aside  tlie  decree  was 
denied.  And  in  Low  v.  Mills,  61 
Mich.  85,  where  it  was  insisted  that 
the  copy  of  the  subpoena  served  was 
not  a  true  copy  for  the  reason  that 
the  return  day  stated  in  the  copy 
was  different  from  the  return  day  in 
the  original,  the  court  said:  "Where 
the  service  appears  from  the  return 
to  have  been  legal  and  proper,  al- 
though false,  it  is  sufficient  to  give 
the  court  jurisdiction.  In  this  case 
the  service  was  not  wholly  void;  the 
original  subpoena,  which  was  with- 
out defect,  was  exhibited  to  the  de- 
fendant with  the  seal  of  the  court 
impressed  thereon."  Johnson  v.  Shep- 
ard,  35  Mich.  115. 

In  Evarts  v.  Becker,  8  Paige  Ch. 
(N.  Y.)  506,  it  was  held  that  affidavits 
and  counter-affidavits  as  to  merits 
were  wholly  unnecessary;  and  the 
court  said :  "  It  is  a  matter  of  right 
for  them  to  be  let  in  to  make  a  de- 
fense"  Tripp  V.  Vincent,  8  Paige 
Cli.  175,  176. 

As  to  defects  in  the  copy  of  the  sub- 
poena served.    In  Arden  v.  Walden, 


1  Edw.  Ch.  (N.  Y.)  630,  where  the 
copy  of  the  subpoena  to  appear  and 
answer  was  blank  as  to  the  return 
day  and  month,  it  was  held  that  the 
service  was  not  sufficient  and  the 
proceedings  were  set  aside. 

Where  by  rule  the  plaintiff  was 
required  to  serve  rule  to  answer, 
see  Livingston  v.  Woolsey,  4  Johns. 
Ch.  (N.  Y.)  365.  For  failure  to  serve 
notice  of  hearing.  Southern  Pac,  Ry. 
Co.  V.  Temple.  59  Fed.  17;  Mix  v. 
Mackie,  2  Edw.  Ch.  (N.  Y.)  426. 

In  Hart  v.  Small,  4  Paige  (N.  Y.), 
551,  552.  the  chancellor  said:  "Where 
a  defendant  had  appeared  by  a  solic- 
itor, he  was  entitled  to  notice  of  ail 
subsequent  proceedings  in  the  cause, 
although  he  had  suffered  the  com- 
plainant's bill  to  be  taken  as  con- 
fessed for  want  of  an  answer."  And 
it  was  held  that  the  decree  taken 
against  a  defendant  ex  parte  who 
had  made  default  in  not  answering 
without  notice  on  his  solicitor  of  the 
hearing  should  be  set  aside  as  irreg- 
ular. 

1  In  Pittman  v.  McClellan.  55  Miss. 
299,  305,  the  court  say:  "Whenever 
a  defendant  seeks  to  be  relieved 
from  a  pro  confesso,  or  to  amend  his 
pleadings,  he  ought  to  exhibit  with 
his  application  the  answer  or  the 
amendment;  if  he  does  not,  he  ought 
to  explain  why  he  cannot  do  so  and 
ask  for  further  time." 

2Harr.  Ch.  (Mich.)  241,  243. 


R  338.]  THE   DECREE.  4:65 

the  nature  of  his  defense,  and  his  belief  in  the  truth  of  the 
matters  constituting  such  defense,  so  far  at  least  as  to  enable 
the  court  to  see  that  injustice  will  probably  be  done  if  the  order 
to  take  the  bill  as  confessed  is  permitted  to  stand." 

§  a38.  The  party  moving  to  reopen  the  cause  and  for 
rehearing  must  not  he  guilty  of  laches.— Equity  and  good 
conscience  demand  that  the  party  moving  for  a  rehearing,  or 
to  open  the  cause  and  allow  a  defense  in  case  of  decree  taken 
pro  confesso,  should  proceed  promptly  and  not  be  guilty  of 
laches,  and  the  fact  that  he  has  been  diligent  in  claiming  this 
privilege  must  appear  in  his  petition. 

In  Johnson  v.  Johnson^  the  chancellor  said:  "When  either 
party  wishes  to  set  aside  the  proceedings  of  his  adversary  for 
a  mere  technical  irregularity,  he  must  make  his  application  at 
the  first  opportunity.  He  must  not  lie  by,  and  permit  his  ad- 
versary to  take  step  after  step  in  the  cause,  without  so  much 
as  notifying  him  of  his  error,  for  the  purpose  of  afterwards 
having  his  proceedings  set  aside.  And  a  defendant  wtio  has 
not  caused  his  appearance  to  be  entered  is  entitled  to  no  greater 
indulgence  in  this  respect  than  one  who  has  appeared."  And 
it  has  been  said  that  a  decree  or  order  will  not  be  set  aside  after 
there  has  been  a  considerable  lapse  of  time  except  upon  very 
strong  grounds.^ 

Walk.  Ch.  (Mich.)  309,  311.  Klenn,  30  N.  J.  Eq.  (3  Stew.)  517; 

"1   Johns.  Ch.  (Md.)   20,     And  in  Benedict   v.   Thompson,   Walk.    Ch. 

Iowa  where  it  was  sought  to  set  aside  (Mich.)  446;  Warner  v.  Juif,  38  Mich, 

an  order  of  court  rendered  at  a  prior  663.    In  Cook  v.  French,  96  Midi.  525, 

term,  it  was  held  that  the  motion  530,  it  was  held  that  a  purchaser  of 

should  have  been  made  at  the  next  land  cannot  claim  immunity  as  a 

succeeding  term.     Keeney  v.  Lyon,  bona  fide  purchaser  from  the  fact 

21  Iowa,  277.     In  Gibson  v,  Crehore,  of  a  subsequent  order  setting  aside 

22  Mass.  (5  Pick.)  146,  it  was  held  the  decree,  for  it  is  his  duty  to  ascer- 
thattlie  question  as  to  whether  there  tain  at  his  peril  whether  tlie  decree 
had  been  improperdelayand  whether  was  warranted  or  not.  The  court 
leave  should  have  been  granted  to  say:  "They  could  claim  no  immunity, 
present  the  motion  depends  upon  as  subsequent  purchasers,  from  the 
the  discretion  of  the  court.  And  effect  of  the  subsequent  order  set- 
in  New  Hampshire  (George  v.  John-  ting  the  decree  aside.  Purchasers 
son,  45  N.  H.  456)  it  was  held  that  buy  at  their  own  risk  as  to  the  va- 
generally  a  court  of  equity  will  not  lidity  of  a  decree."  Citing  Ritson  v. 
open  an  account  after  six  years  of  Dodge,  33  Mich.  463;  McGoren  v. 
delay.     Robertson  v.  Miller.  3  N.  J.  Avery,  37  Mich.  120. 

Eq.  (2  H.  W.  Green),  451;  Embury  v. 
30 


466  THE   DECEEE.  [§  339. 

§  339.  Form  and  requisites  of  the  application  —  Filing 
and  serving  the  same  and  the  answer  thereto. —  As  we  have 

seen,  the  application  is  generally  made  by  petition  to  the  court 
which  heard  the  cause.  The  petitioner  in  his  application 
should  set  forth  fully  and  with  precision  and  certainty  the 
reasons  for  granting  a  rehearing,  and  as  a  general  rule  the 
allegations  should  not  be  upon  information  and  belief;  but  it 
has  been  held  that  where  the  petitioner  has  no  personal  knowl- 
edge of  the  facts,  he  may  allege  them  upon  information  and 
belief.^  In  such  case  he  should  support  his  petition  by  attach- 
ing thereto  the  affidavits  of  witnesses  who  can  state  positively 
and  upon  their  own  knowledge  the  facts  upon  which  he  de- 
pends; and  further,  state  that  at  the  hearing  the  petitioner 
will  rely  upon  the  records  and  files  in  the  cause  and  the  affi- 
davits attached  to  his  application,  copies  of  which  have  been 
served  upon  the  opposite  party. 

If  the  rehearing  is  sought  upon  the  ground  of  error  of  law 
the  petition  should  set  forth  with  clearness  and  certainty  the 
particular  errors  that  are  complained  of,  so  that  the  court  may 
fully  understand  and  the  opposite  party  have  notice  of  the 
claim  of  the  petitioner  in  that  resoect.  The  errors  of  law 
eomplained  of  must  be  such  as  are  apparent  upon  the  record, 
and  arising  upon  questions  not  argued  at  the  final  hearing.  If 
the  rehearing  is  sought  for  upon  the  ground  of  newly-discov- 
ered evidence,  the  petition  must  show  that  the  evidence  is  not 
merely  cumulative  to  that  which  was  presented  at  the  hear- 
ing,2  but  that  it  is  of  such  a  nature  that  if  it  had  been  pre- 
sented at  the  hearing  it  would  have  changed  the  result;  that 
it  was  not  known  by  the  petitioner  to  exist  before  the  hearing, 
and  that  with  reasonable  diligence  he  could  not  have  discov- 
ered it.  The  petition  must  also  state  clearly  and  concisely  the 
nature  of  the  newly-discovered  evidence,  and  if  this  statement 
is  upon  information  and  belief  it  would  be  considered  good 
practice,  and  the  courts  would  generally  require  that  there  be 
attached  to  the  petition  the  affidavits  of  the  witnesses  who  are 
expected  to  furnish  the  proofs  at  the  hearing,  if  it  is  granted, 
verifying  the  statement  in  the  petition.  It  should  also  be  al- 
leged that  the  decree  complained  of  is  inequitable  and  injuri- 

» Page  V.  Holmes,  etc.  Co.,  2  Fed.  330. 

2  Detroit  Savings  Bank  v.  Truesdail,  38  Mich.  44a 


THE    DECREE.  46  ( 


§  340.] 

ous  to  the  petitioner.^  The  petition  should  be  signed  and  sworn 
to  by  the  petitioner,  filed  with  the  clerk  or  register  of  the 
eourt,  and  a  copy  thereof  with  copies  of  affidavits  relied  upon, 
if  any,  attached,  with  notice  of  hearing,  giving  the  time  pre- 
scribed by  the  rules  and  practice  of  the  court,  served  upon  the 
opposite  party  or  his  solicitor.  The  adverse  party  may  answer 
the  petition,  traversing  it  or  setting  up  any  matter  in  avoidance 
of  it;  or,  if  an  order  to  show  cause  has  been  made  and  served, 
may  show  cause  on  the  return  day  of  the  order  against  grant- 
ing the  petition. 

The  form  and  contents  of  the  petition  in  most  jurisdictions 
is  fixed  by  rule  of  court.  In  the  United  States  court  it  is  pro- 
vided that  "every  petition  for  a  rehearing  shall  contain  the 
special  matter  or  cause  on  which  such  rehearing  is  applied 
for,  shall  be  signed  by  counsel,  and  the  facts  therein  stated,  if 
not  apparent  on  the  record,  shall  be  verified  by  the  oath  of 
the  party  or  some  other  person.  No  rehearing  shall  be  granted 
after  the  term  at  which  the  final  decree  of  the  court  shall  have 
been  entered  and  recorded,  if  an  appeal  lies  to  the  supreme 
court.  But  if  no  appeal  lies,  the  petition  may  be  admitted  at 
any  time  before  the  end  of  the  next  term  of  the  court,  in 
the  discretion  of  the  court." - 

If  it  is  sought  by  the  application  to  set  aside  a  decree  j^o 
Gonfesso  and  permit  the  defendant  to  interpose  his  defense,  the 
proposed  answer  of  the  defendant  should  be  attached  to  the 
petition  and  served  upon  the  opposite  party  with  copies  of  the 
affidavit  upon  which  he  relies,  that  the  sufficiency  of  the  answer, 
as  well  as  of  the  showing  for  the  opening  of  the  case,  may  be 
considered ;  for  if  the  answer  is  insufficient  and  does  not  set  up 
a  proper  defense  to  the  case  made  by  the  bill  and  proofs  in 
the  cause,  the  application  will  not  be  granted. 

§  340.  The  hearing. —  Pursuant  to  the  notice  of  hearing,  or 
upon  the  return  day  of  the  order  to  show  cause  if  no  adjourn- 
ment is  had,  the  application  for  rehearing  will  be  brought  on 
to  be  heard.  The  proofs  to  be  adduced  must  relate  to  the  rea- 
sons alleged  in  the  application  and  the  answer  of  the  opposite 
party  if  pertinent,  and  generally  consist  of  affidavits  attached 
to  the  application,  if  they  have  been  properly  served,  and  the 
counter-affidavits  of  the  respondent.  The  court,  however,  may 
1  Michigan  Ins.  Co.  v.  Wbittemore,  13  Mich.  427.         »  u.  S.  Eq.  Rule  88. 


468  THB    DECREE.  [^  340. 

brino-  the  affiants  in  the  affidavits  into  court  and  have  thera 

o 

examined  and  cross-examined  in  the  matter,  and  may  direct 
that  other  witnesses  be  produced,  or  may  refer  the  matter  of 
taking  further  proofs  to  a  master  or  commissioner  to  take  testi- 
mony and  report  the  same  to  the  court. 

If  the  petition  be  based  upon  newly-discovered  evidence,  the 
petitioner  must  show  the  truth  of  the  allegations  in  his  peti- 
tion and  good  reasons  for  not  having  produced  the  proofs  at 
the  hearing.  And  generally  it  is  the  better  practice  to  attach 
to  the  application,  and  produce  at  the  hearing  of  the  petition, 
the  affidavits  of  the  witnesses  whom  it  is  claimed  will  give  the 
newly-discovered  evidence,  stating  fully  the  facts  they  will 
testify  to,  that  the  court  may  judge  of  the  sufficiency  of  the 
proofs,  and  whether  it  is  of  such  a  nature  as  to  change  the 
findinsfs  of  the  court  if  the  cause  should  be  reheard. 

The  petitioner  has  the  affirmative  at  the  hearing  of  his  ap- 
plication, and  therefore  the  opening  and  closing  of  the  proofs 
and  the  argument.  The  proof  must  clearly  show  good  and 
sufficient  reasons  for  setting  aside  the  decree  and  granting  a 
rehearing,  not  only  by  a  preponderance  of  proof,  but  by  proof 
sufficient  to  overcome  the  presumption  which  exists  that  the 
final  decree  is  proper  and  sufficient.  The  court  must  be  con- 
vinced that  to  allow  the  decree  to  stand  would  be  inequitable 
and  unjust,  and  if  the  cause  was  to  be  reheard  a  different  de- 
cree would  be  the  result.  If  the  petition  be  to  set  aside  a 
decree  pro  confe^so  and  allow  the  defendant  to  introduce  his 
defense,  the  court  at  the  hearing  should  determine  whether  the 
answer  proposed  by  the  defendant  is  a  sufficient  answer,  and 
if  shown  to  be  true  would  be  a  complete  defense  to  the  case 
made  by  the  bill  and  the  proofs  adduced  at  the  hearing;  for  if 
the  proposed  answer  is  insufficient  it  would  be  an  idle  ceremony 
to  permit  the  decree  already  found  to  be  set  aside  and  the  case 
reheard.  If  the  application  for  a  rehearing  is  allowed  the 
court  will  order  the  decree  set  aside  and  a  rehearing  of  the 
cause.  The  proofs,  however,  that  have  already  been  taken, 
and  which  were  considered  at  the  hearing,  will  generally  be 
allowed  to  be  presented  upon  the  rehearing  if  no  injustice 
would  result  from  such  permission. 


CHAPTER  XVL 

THE  BILL  OF  REVIEW  AND  BILLS  IN  THE  NATURE  OF  BILLS 

OF  REVIEW. 


34L  The  nature  and  scope  of  the 
bill. 

342.  The  grounds  of  the  bill 

343.  Error  of  judgment  as  to  facts. 
344  Bill  founded  on  discovery  of 

new  matter. 

345.  Newly- discovered  evidence. 

346.  Some  prerequisites  for  filing 

a  bill  of  review  —  Must  obey 
the  decree. 

347.  Other  prerequisites. 

348.  Application  for  leave  to  file  a 

bill  of  review. 

349.  The  hearing  of  petition    for 

leave  and  the  order  thereon. 


§  350.  Parties  to  the  bill. 

351.  Frame  of  the  bill  of  review. 

352.  Bills  in  the  nature  of  bills  of 

review. 

353.  Bills  to  impeach   the   decree 

on  account  of  fraud. 

354.  Bills  to  carry  decrees  into  ex- 

ecution. 

355.  When  should  the  bill  be  filed. 

356.  Defenses  to  bills  of  review. 

357.  The  hearing. 

357a.  Enforcement  of  decree  — 
Writ  of  execution. 


§  341.  The  nature  and  scope  of  the  bill. —  After  the  decree 
has  been  settled,  signed  and  enrolled,  or  has,  by  reason  of  the 
lapse  of  the  term  at  which  it  was  made  and  issued,  become  a 
record  in  the  cause,  it  cannot  be  reviewed  by  the  court  which 
ordered  it  except  upon  a  bill  of  review.  The  only  office  of  the 
bill  of  review  is  to  reopen  the  cause  after  a  final  decree  has 
been  signed  and  enrolled  or  become  a  record  of  the  court  and 
for  the  correction  of  errors  apparent  upon  the  face  of  the  de- 
cree; or  because  of  the  discovery  of  new  matter  which  could 
not,  by  the  exercise  of  reasonable  diligence,  have  been  discov- 
ered before  the  trial;  or  which  has  arisen  after  the  decree  and 
would  materially  affect  the  determination  of  the  cause  if  it 
were  introduced  at  a  rehearinsf. 

It  has  been  said  that  "  a  bill  of  review  is  in  the  nature  of  a 
writ  of  error,  and  its  object  is  to  procure  an  examination  and 
alteration  or  reversal  of  a  decree  made  upon  a  former  bill, 
which  decree  has  been  signed  and  enrolled." '  And  so  a  bill 
of  review  will  lie  only  after  a  final  decree  has  been  signed  and 


1  Story,  Eq.  PI,  sec.  403. 


*70  BILL    OF    REVIEW    AND    BILLS    OF    THAT    NATURE.        [§  342. 

enrolled.'  And  it  has  been  held  by  the  United  States  court 
that  it  is  not  sufficient  ground  to  support  a  bill  of  review  that 
since  the  decree  a  state  court  has  given  the  constitution  of  the 
state  a  different  construction  from  that  put  upon  it  by  the 
federal  court  in  its  decisions;  or  that  since  the  decree  the  su- 
preme court  has  changed  its  ruling  upon  a  question  of  law  or 
fact.2 

§  342.  The  gronnds  of  the  bill.—  In  the  Ordinances  in 
Chancery  of  Lord  Chancellor  Bacon  we  find  the  following  re- 
specting bills  of  review:  "  Xo decree  shall  be  reversed,  altered, 
or  explained,  being  once  under  the  great  seal,  but  upon  bill  of 
review.  And  no  bill  of  review  shall  be  admitted,  except  it 
contain  error  in  law,  appearing  in  the  bod}'^  of  the  decree, 
without  further  examination  of  matters  in  fact,  or  some  new 
matter,  which  hath  arisen  in  time  after  the  decree,  and  not 
any  new  proof  which  might  have  been  used  when  the  decree 
was  made.  Nevertheless,  upon  new  proof,  that  is  come  to 
light  after  the  decree  was  made,  which  could  not  possibly 
have  been  used  at  the  time  when  the  decree  passed,  a  bill  of 
review  may  be  grounded  by  the  special  license  of  the  court, 
and  not  otherwise."' 

This  rule  has  never  been  departed  from  by  the  equity  courts, 
and  in  Hill  v.  Phelps^  the  court  say:  "There  are  but  three 
grounds  upon  which  such  a  bill  can  be  sustained.  They  are: 
(1)  error  of  law  apparent  upon  the  face  of  the  decree  and  the 
pleadings  and  proceedings  upon  which  it  is  based,  exclusive  of 
the  evidence;  (2)  new  matter  which  has  arisen  since  the  decree ; 

'Savage  v.  Johnson,  125  Ala.  673,  Johns.  CL  (N.Y.)488;  Bank  v.  Loomis, 

28  So.  547;  Read  v.  Franklin  (Tenn.  2   Sandf.  Ch.   70.     In   Thompson   v. 

Ch.    App.,  1900).    60  S.    W.    215;  Ft  Goulding.  87  Mass.  (5  Allen),  81,  82, 

WayneElectricCorp. V.Franklin, etc.  the  court  say:  "The  well  settled  rule 

Co.,  58  N.  J.  Eq.  543,  43  Atl.  650.     In  of  chancery  practice  is  that,  after  a 

Jenkins  v.  Eldredge,  3  Story  (U.  S.),  decreehasbeenenrolled,  that  is,  after 

299,  302,  it  was  said :  "  It  is  very  clear  it  has  become  a  matter  of  record, 

that  a  bill  in  the  nature  of  a  bill  of  there  can  be  no  rehearing,  either  on 

review  is  not  the  appropriate  remedy  motion orpetition."  Clappv.Thaxter, 

...    in  the  present  stage  of  this  7  Gray  (Mass.),  384;  Maynard  v.  Pe- 

cause;  for  such  a  bill  lies  only  after  reault,  30  Mich.  160. 

a  final  decree,  and  not  upon  an  inter-  2 Hoffman   v.  Knox,  50  Fed.  484; 

locutory   decree,    like   the    present,  Tilghman  v.  Werk,  39  Fed.  680. 

where  the  subject  is  still  before  the  '  Story,  Eq.  PI.,  sec.  404;  CJooper's 

court."     Whiting  et  al.  v.  Bank,  13  Eq.  PI.  89. 

Pet.  (U.  S.)  6;    Wiser  v.  Blachly,  3  *41  a  C.  A.  569,  570,  101  Fed.  650. 


§  343.]        BILL   OF    REVIEW    AND    BILLS    OF    THAT    NATURE.  471 

and  (3)  newly-discovered  evidence,  which  could  not  have  been 
found  and  produced  by  the  use  of  reasonable  diligence  before 
the  decree  was  rendered.  .  .  .  The  error  in  law  which  will 
maintain  a  bill  of  review  must  consist  of  the  violation  of  some 
statutory  enactment,  or  of  some  recognized  or  established 
principle  or  rule  of  law  or  equity,  or  of  the  settled  practice  of 
the  court.  Error  in  matter  of  form  or  in  the  propriety  of  a 
decree,  which  is  not  contrary  to  any  statute,  rule  of  law,  or  to 
the  settled  practice  of  the  court,  is  not  sufficient  to  maintain  a 
suit  to  review  a  final  decree."  ^ 

When  the  ground  for  the  bill  is  error  of  law  apparent  upon 
the  face  of  the  decree,  the  error  must  appear  upon  the  decree, 
the  pleadings  or  proceedings  in  the  cause  and  without  refer- 
ence to  the  evidence,  or  the  bill  will  not  be  sustained.  For- 
merly, in  England,  the  decree  recited  the  pleadings  and  the 
evidence  in  substance  so  that  the  court,  when  this  ground  was 
alleged,  need  only  refer  to  the  decree.  But  under  the  recent  prac- 
tice^and  especially  in  the  courts  of  the  United  States,  it  is  not 
necessary  to  recite  the  pleadings  or  evidence,  but,  for  the  pur- 
pose of  the  hearing,  the  bill,  answer  and  other  pleadings  are 
held  to  be  a  part  of  the  record  before  the  court  and  are  to  be 
considered  with  the  decree  in  determining  the  question.^ 

§  343.  Error  of  judgment  as  to  facts.— Where  the  bill  is 
filed  upon  the  ground  that  there  is  error  of  law  apparent  upon 
the  face  of  the  decree,  it  will  not  be  permitted  to  show  that  the 
decree  is  erroneous  in  its  adjudication  of  facts;  that  can  only  be 
taken  advantage  of  upon  an  appeal  and  in  the  appellate  court.  If 
the  decree  were  based  upon  a  recital  of  facts  which  did  not 
exist  in  the  cause,  it  appearing  upon  the  face  of  the  decree  that 
the  court  had  misapprehended  the  facts  involved,  the  decree 
would   have  no  foundation  and  a  bill  of  review   would  lie.' 

1  Freeman  v.  Clay,  2U.  S.  App.  587,  A  pp.  357,  361,  the  court  said:  "The 
2  C.  C.  A.  587,  593,  53  Fed.  1,  7;  Hoff-  difficulty  with  this  decree  is  that  it 
mau  V.  Knox,  1  C.  G  A.  535,  541,  50  has  no  support  in  the  record  as  to 
Fed.  484,  490.  facts  necessary  to  sustain  it;  neither 

2  For  errors  in  a  decree  apparent  by  specific  finding  of  facts  in  the  de- 
upon  the  face  of  the  record  a  bill  of  <  ree  itself,  nor  by  certificate  of  evi- 
review  will  lie.  Osburn  v.  San  Diego,  dence  heard,  nor  by  deposition,  nor 
eta  Ca,  178  U.  S.  22,  44  L.  Ed.  961;  by  evidence  heard  before  a  master 
Story,  Eq.  PL  sec  407.  in  chancery,  is  there  any  evidence 

•  In  Adamski  v.  Wieczorek,  93  111.     preserved  which,  in  the  slightest  de- 


472  BILL    OF    RKVIKW    AND    BILLS    OF    THAT    NATL  KK.       [§343. 

But  if  it  appeared  that  the  court  had  considered  the  facts  which 
were  pleaded  and  the  proofs  adduced,  but  had  arrived  at  a 
conclusion  not  satisfactory  to  the  party  asking  to  havi'  it  ro- 
viewed,  if  a  question  of  the  weight  of  evidence  was  invt»lved, 
then  a  bill  of  review  is  not  the  proper  remedy,  for  it  will  not 
lie  for  error  of  judgment  as  to  the  facts  considered.  The  only 
questions  open  in  a  bill  of  review,  except  when  it  is  tiled  on 
the  ground  of  newly-discovered  evidence  or  for  the  discovery 
of  new  matter,  are  such  as  arise  upon  the  pleadings,  proceed- 
ings and  decree  without  reference  to  the  evidence  in  the  cause. 
And  it  has  been  said  that  the  decision  of  the  court  upon  tho 
issues  of  fact,  so  far  as  they  depend  upon  the  proofs,  are  ct)n- 
clusive  on  a  bill  of  review.  So,  where  a  bill  of  review  was 
filed  specially  assigning  error  as  to  the  findings  upon  the  evi- 
dence in  the  cause,  and  not  alleging  newly-discovered  matter, 
it  was  held  to  be  properly  dismissed,  and  that  such  a  bill 
would  be  demurrable,  the  court  saying  that  "  tho  evidence 
in  the  original  cause  cannot  be  discussed  for  the  purpose  of 
questioning  the  propriety  of  the  original  decree  as  based  on 
such  evidence.  It  can  only  be  adverted  to,  if  at  all,  lor  the 
purpose  of  showing  the  relevancy  and  bearing  of  the  new 
matter  sought  to  bo  introduced  into  the  cause."  '  But  where 
there  was  a  finding  of  fact  contrary  to  allegations  in  tho  an- 
swer and  there  was  no  evidence  to  overcome  the  denials,  the 
court  held  that  a  decree  entered  setting  aside  conveyances 
without  such  evidence  to  support  it  was  error  in  point  of  law.' 


gree,  tends  to  establish  the  allega-  there  was  no  proof  to  establish  tliat 

tions  of  the  bill  of  review  to  the  ef-  fact." 

feet  that  the  original  decree  was  im-  '  Buffington  v.  Harvey,  95  U.  S.  99, 

properly  obtained."    Story,   Eq.   PI.,  103;  Putnam  v.  Day,  23  Wall.  (U.  S.) 

sec.  405.     In  Webb  v.  Pell,  3  Paige  60;  Thompson  v.  Maxwell,  95  U.  S. 

Ch.  (N.  Y.)  368,  371,  the  court  say:  391. 

"It  is  well  settled  that  a  bill  of  re-  2 In  Clark  v.  Killian,  103  U.  S.  707, 
view,  for  error  apparent  upon  the  769.  the  court  in  its  opinion  say: 
decree,  must  be  for  an  error  in  point  "The  answers  denied  the  allegations 
of  law,  arising  out  of  facts  admitted  of  fraud,  and  there  was  no  evidence 
by  the  pleadings,  or  recited  in  the  to  overcome  the  denials.  The  plead- 
decree  itself,  as  settled,  declared,  or  ings  in  that  case  did  not  aulJiori/o 
allowed  by  the  court.  And  a  bill  of  the  conclusion,  as  matter  of  law,  that 
review  cannot  be  sustained  on  the  S.  had  conveyed  or  caused  to  be  con- 
ground  that  a  fact  is  stated  in  the  veyed  tht>  proj>"rty  witli  tlit^  fraudu- 
decree    as   proved,    when    in    truth  lent  intention  of  thoroa^ter  engaging 


§344.]      nu.u  OF  uKvncw  and  luu.s  of  that  NATmiic.  473 

To  support  tho  bill  lor  orror  of  law  it  must  appear  that  tho 
court  has  reachocl  an  .rroncou.  conclusion  of  law  as  o  ho 
rights  of  ti,c  parties,  and  ,ncrc  irrc,M.la,r>t.os  m  tho  procoe  ,ng 
o^  error  in  deduction  from  tho  evidence  will  not  bo  consul- 

'Tn'^^./Ar  ..  .S7..>/./.-^  tho  court  say:  "The  tru.  r,do  of  chan- 
cery practice,  to  be  collected  as  well  from  the  c:,.es  r.lerrec 
to  as  from  the  or^mnimtion  of  our  courts,  is  concmed  to  be 
that  the  errors  in  law,  a^niinst  which  relief  can  bo  had  by  bdl 
of  review,  must  be  such  as  arise  rather  from  obvious  nus  ako, 
or  inadvertence,  appearing  on  the  fac-e  of  the  decree,  or  il  tho 
facts  are  not  there  stated)  at  least  of  record,  than  ol  alleged 
error  in  the  deliberate  judgment  of  the  chancellor  on  a  debat- 
able qu.'slion  of  law,  or  of  equitable  right." 

S  344,  IJill  lounded  on  discovery  of  new  matior.-A  bill 
of  review  may  be  founded  upon  new  matter  winch  has  arisen 
since  the  decree,  or  upon  newly-discovered  evidence  which 
could  not  have  been  found  and  produced  by  the  exercise  ot  rea- 

in  business,  or  ImvinKbuBineBstrana.     H54;    San    ^;;-f  ^^ /^^^^^X-- 
actions.     .     .     .     Taking  all  the  c.r-     '^^-^"]^'^'>"'''^^^^^^ 
cu.nstan<.es  to  be  as  they  are  set  out     weather,  40  N   J.  I'-q.  .^7.  19  At    2. 
inthepleadinKs..tisper.er,tlyclear     And    when-  ''M-P^^      -,,;,,  3 
that  the<-ourt.  .n  adju.i^MU^  the  non-     closure  case  that  the      -    « J^ 
veyanc-,es  of  the  lots  abov.  na.ned  to     an   excess,  ve  -->7'    .^^     '  ^7,;;,  ;, 
be  null  and  void,  and  ordern.«  then»     b.ll  of  review  was  held     >     «       >  - 
to  be  Bol.l  in  satisfaction  of  C'h  ju.Ik'-     unleHS  the  conM.la.nant       '"^J^^^     '  « 
ment.  erred  in  point  of  law.     Conse-     -"^r"' "TlZm  u'm 
nuently   a   bill   of   review    was    the     v.  InKersoll.  100  M  ch   .HO 
Tro,J  n.ode    of    remedying    that         "^  2  Slew   &  1>.  (Ala.)  4       4^4.     A  ^ 
'      '    „  in  Kiniberly  v.   Anna,  U'J   U.  H.  t)l^, 

"llrdan  v.  Hardie.  131  Ahu  72.  .1     40   Fd.  54H.  aflinned    in    1^6  U    a 
So  r,04.     Failure  to  take   an   appeal     (>2<...  it  was  hel.l  that  a  b.H  of  .eview 
fs  no  ground  for  the  support  of  a  bill     will  not  be  »-»--  ;^:;;;;^; ;  .n 
of  review.     Murphy  v.  Schoder.  126     alleged  erroneous  J"*^"*^^;^"  ^'^  ^•^" 
Mich.  GOT.     And  where  it  appeared     elusion    from   the   -u  e,u.e.       Du  - 
by  the  petition  of  defendant  asking     ley  -  Flint    9  1  hsa    ^^^  K^  J  .  '^^ 
leave  to  lile  a  bill  of  review  that  the     firn.ed  in  103  U.   S.  2^^'  ^«"''"*'   J' 
nXe  of  hearing  serve.l  on  her  so-     Lyons.  19  D.  C  207.     And  the  n,ere 
"?.    or  wa    not  sulTicient  to  pernut     fac-t  that  a  decree  is  based  upon  u. 
liim  to  be  present,  that  the  groun.l     adnnssible  or  improper  evidence  « 
for   divorce   relied   upon   had    been     not   sullicient  ground  for  a  bill   of 
condoned,  it  w,.   in.proper  to  deny     review  -''-.^''-"-^PPi;:;*:  ^ 
the  petition.     Kinsel  v.   Kinsel.  126     the  face  ol  the   decree.      Eaton    v. 
M.cll.  69:5;  Hank  v.  Dundas.  10  Ala.     Dickinson,  !35  TeniL  (3  bneed),  397. 
661;     Tarik<;rKly     v.   Pettis,   61    Ala. 


474:  BILL    OF    REVIEW    AND    BILLS    OF    THAT    NATURE.       [§  344. 

sonable  diligence  before  the  decree  was  rendered.  These  are 
the  second  and  third  reasons  laid  down  by  Lord  Chancellor 
Bacon  in  his  Ordinances  in  Chancery,  already  quoted,  and 
seem  to  be  distinct  reasons  resting  upon  distinct  conditions 
and  facts. 

As  to  new  matter  which  has  arisen  since  the  decree,  there 
has  been  but  little  discussion;  such  matter  evidently  rests 
upon  ditferent  grounds  from  newly-discovered  evidence,  for 
that  consists  of  facts  which  really  existed  and  was  a  part  of 
the  case  when  it  was  heard,  but  was  not  known  to  the  partv, 
while  the  new  matter  arising  since  the  decree  is  matter  which 
had  no  existence  at  the  time  of  the  hearing.  This  particular 
ground  comprises  cases  where,  by  the  occurrence  of  some  fact, 
the  decree  already  rendered  would  become  void,  or  at  least  so 
eflFected  that  the  court  would  at  once  determine  that  it  would 
be  unjust  and  inequitable  to  allow  it  to  stand.  As,  for  ex- 
ample, if  there  had  been  a  release  or  dischars^e  of  some  obli'M- 
tion  or  lien  which  would  affect  some  or  all  of  the  parties;  or  if 
the  decree  had  been  obtained  by  fraud. 

Mr.  Adams,  in  discussing  this  particular  ground  for  filing  a 
bill  of  review,  says:  ''If  new  matter  occurs  or  is  discovered 
after  the  decree,  it  is  not  properly  matter  of  supplement,  but 
may  be  introduced  into  the  cause,  if  necessary,  by  a  bill  ex- 
pressly framed  for  the  purpose,  and  called  a  bill  to  execute  or 
to  impeach  a  decree."  ^ 

Mr.  Mitford,  in  discussing  this,  has  raised  a  question  as  to 
whether  the  discovery  of  new  matter  not  in  issue  in  the  cause 
in  which  a  decree  has  been  made  could  be  the  ground  of  a  bill 
of  review,  and  urges  that  cases  could  rarely  happen  in  which 
new  matter  discovered  would  not  be  in  some  degree  evidence 
of  matter  in  issue  in  the  original  cause  if  the  pleadings  were 
properly  framed,  but  finally  concludes  that  "  if  a  case  were  to 
arise  in  which  the  new  matter  discovered  could  not  be  evi- 
dence of  any  matter  in  issue  in  the  original  cause,  and  yet 

1  Adams'   Eq.   415.     It  is  said  by  but    constituting  an    entirely  new 

Judge  Story  (sec  416)  that  "it  has  issue,  may  yet  be  the  subject  of  a 

been    established   that   matter   dis-  bill  of  review,  or  of  a  supplemental 

covered    after    a    decree    has   been  bill  in  the  nature  of  a  bill  of  review." 

made,  although  not  capable  of  being  Partridge  v.  Usborne,  5  Russ.   195: 

used  as  evidence  of  anything  which  Massie  v.  Graham,  3  McLean,  42. 
was  previously  in  issue  in  the  cause, 


§  345,]        BILL    OF   REVIEW    AND    BILLS   OF   THAT   NATURE. 


475 


clearly  demonstrated  error  in  the  decree,  it  should  seem  that 
it  might  be  used  as  aground  for  a  bill  of  review,  if  relief  could 
not  otherwise  be  obtained.  It  is  scarcely  possible,  however, 
that  such  a  case  should  arise  which  might  not  be  deemed  in 
some  degree  a  case  of  fraud,  and  the  decree  impeachable  on 
that  ground."* 

Under  this  ground  for  bill  of  review  may  be  grouped  rea- 
sons which  occur  at  the  hearing  or  at  the  time  of  rendering  the 
decree.  As  for  mistake  or  misconduct  of  counsel,  as  where  a 
solicitor  had  entered  his  appearance  without  authority  and  a 
decree  was  rendered  without  any  service  upon  the  defendant;^ 
or  where  the  solicitor  compromised  the  rights  of  the  party  by 
an  unauthorized  act.'  But  mere  carelessness  or  unfaithfulness, 
or  proceeding  upon  wrong  advice,  or  where  documentary  evi- 
dence was  lost  or  mislaid  by  carelessness  of  counsel,  will  not 
support  a  bill  of  review. 

§  345.  Newly-discovered  evidence.— A  bill  of  review  rest- 
ing upon  the  ground  of  newly-discovered  evidence,  like  a  mo- 
tion or  petition  for  rehearing,  must  show  that  the  new  matter 


1  Mitf.  &  Tyler's  Eq.  PI.  &  Pr.  183; 
Partridge  v.  Usborne,  5  Russ.  (Eng.) 
195.  In  Young  v.  Keighly,  16  Ve& 
Jr.  348,  this  court  refused  its  leave 
to  file  a  bill  of  review,  where  it  would 
have  been  the  means  of  introducing 
an  entirely  new  case,  of  the  matter 
of  which  the  plaintiff  was  sufiBciently 
well  apprised  to  have  been  able,  with 
the  exertion  of  reasonable  diligence, 
to  have  brought  the  same  at  first 
completely  before  the  court.  Reed 
et  al.  v.  Stanley  et  al.,  89  Fed.  430. 

2  Griggs  v.  Gear,  8  111.  (3  Gil.)  2; 
Childers  v.  West,  39  Ga,  518.  Mistake 
of  computation  may  be  corrected  by 
review.  Lovell  v.  Kelley,  48  Me. 
263;  Starbird  v.  Eaton,  42  Me.  569; 
Isley  V,  Knight,  1  Mass.  467.  Forcing 
one  to  trial  unprepared,  it  appearing 
that  injustice  has  been  done,  is  cause 
for  review.  Reynard  v.  Brecknell, 
4  Pick.  (Mass.)  304.  But  see  Weeks 
V.  Adamson,  106  Mass.  514. 

*Ex  parte  Vandermissen,  5  Rich. 


(S.  C.)  519,  60  Am.  Dec.  102;  Jones  v. 
Pilcher,  6  Munf.  (Va.)  425;  Franklin 
V.Wilkinson,  3  Munf.  (Va.)  112;  Price 
v.  Notrebe,  17  Ark.  45;  Calmes  v. 
Ament,  8  Ky.  (1  A.  K  Marsh.)  459; 
Riley  v.  Emerson,  5  N.  H.  531.  In 
Sylvester  v.  Hubley,  157  Mass.  306, 
the  court,  in  a  case  where  the  appli- 
cation was  founded  upon  the  negli- 
gence and  misconduct  of  the  attor- 
ney, held:  "The  question  whether 
to  grant  a  review,  and  if  so  on  what 
terms,  is  addressed  largely  to  the 
discretion  of  the  judge.  This  dis- 
cretion should  be  exercised  in  such 
a  way  as  to  promote  an  orderly  and 
proper  administration  of  justice,  and 
not  to  encourage  carelessness,  igno- 
rance, and  laxity  of  practice  in  the 
conduct  of  cases  in  courts."  Thayer 
v.  Goddard,  19  Pick.  (Mass.)  60; 
Brewer  v.  Holmes,  1  Mete.  (Mass.) 
288.  For  failure  to  enter  an  appear- 
ance, see  New  England,  etc.  Co.  v. 
Lisbon,  etc.  Co.,  23  N.  H.  170. 


476  BILL    OF    R3VIEW    AND    BILLS    OF    THAT    NATDBE.       [§  345. 

has  corae  to  the  knowledge  of  the  applicant  since  the  hearing 
of  the  cause,  and  that  he  could  not  with  reasonable  diligence 
have  discovered  it  sooner.  It  must  be  evidence  that  is  material 
and  not  cumulative,  and  such  evidence  that  if  it  had  been 
brought  to  the  attention  of  the  court  at  the  hearing  would  in 
all  probability  have  occasioned  a  different  decree.^  And  where 
the  allegations  of  the  newly-discovered  evidence  are  vague 
and  uncertain,  and  so  indefinite  as  to  warrant  no  satisfactory 
conclusion,  they  will  not  be  sufficient  to  sustain  a  bill  of  re- 
view.2  It  must  appear  by  the  bill  that  substantial  justice  has 
not  already  been  done  by  the  decree,  and  that  the  review,  if 
granted,  would  result  in  a  material  change  of  the  decree 
already  made.'  Where  in  a  suit  for  partition  a  bill  of  review 
was  filed  to  change  a  decree  on  the  ground  of  newly-discov- 
ered evidence  of  title,  showing  that  certain  persons  were  not 
entitled  to  an  interest  in  the  land  as  declared  by  the  decree, 
and  it  appeared  that  the  title  was  a  matter  of  public  record 
and  reasonable  diligence  in  the  examination  of  it  would  have 
disclosed  the  same  title  asserted  in  the  bill  of  review,  it  was 
held  that  the  bill  of  review  should  be  dismissed.^  The  evi- 
dence sought  to  be  adduced  must  not  be  merely  cumulative 
nor  simply  to  impeach  former  testimony  in  the  case.^ 

It  is  said  to  be  "well  established  that  new  evidence,  or  a 
showing  that  evidence  heard  is  false,  will  not  avail  on  bill  of 
review  where  the  evidence  relied  upon  simply  tends  to  tiie 
establishing  of  the  issues  already  presented  and  disposed  of; 

1  In  Jourolmon  v.  Ewing,  29  C.  C.  complainant  to  a  decree  more  beue- 

A.  41,  85  Fed.  103,  it  is  said  to  be  a  ficial  to  him  than  the  decree  already 

leading  rule  "that  the  new  evidence  rendered. 

must  be  of  such  a  character  and  so  ^Caller   v.    Shields,  2  Stew.  &  P. 

controlling  in   its  effect  as  that  it  (Ala.)    417;    Warren   v.    Adams,   26 

would  probably  induce   a   different  Colo,    404,  60  Pac.  632;    Reynolds  v. 

conclusion  from  that  on  which  the  Fla.  etc.  Ry.  Co.  (Fla.,  190J),  28  So. 

former  decree  was  based,  in  order  to  861. 

give  ground  for  the  filing  of  such  a  *  Glover  v.  Jones,   95   Ma    303,  49 

bill.     But  in  Banks  v.  Long,  79  Ala.  Atl.   1 104. 

319,  it  was  held  tliat  it  must  appear  *  Watts  v.  Rice,  192  111.   123,  61  N. 

that  the  newly-discovered  evidence  E.  337;  Fuller  v.  Jackson  (Tenn.  Ch., 

was  not  known  at  the  time  of  the  1901),  62  S.  W.  274. 

former  hearing,  and  that  such  evi-  &  Story,  Eq.  Pi.  413;  2  Barb.  Ch.  92; 

denoe,  together  with  the  proofs  al-  Boyden  v.  Reed,  55  111.  458;    Alioltz 

r.'^aJy  in  the  case,  would  have  entitled  v.  Durfee,  122  111.  286. 


§  346.]        BILL   OF    REVIEW    AND    BILLS    OF    THAT    NATURE.  477 

in  other  words,  where  it  is  merely  a  matter  of  reducing  or  in- 
creasing, by  cumulation,  the  evidence  heard  upon  the  issues. 

§  340.  Some  prerequisites  to  flUn,  a  bill  of  review  -  Must 
obey  the  decree.- The  early  English  rule  and  the  rule  which 
was  followed  in  the  earlier  cases  in  the  United  States  was  that 
before  a  bill  of  review  could  be  filed  the  party  ^lust  obey  the 
decree  that  had  been  entered  in  the  cause.     No  doubt  th  s- 
rule  is  generally  followed  by  the  courts,  but  in  some  respects 
it  has  been  more  or  less  modified.     In  stating  the  practice  m 
this  respect,  Daniels  uses  this  language:  "Filing  a  bill  of  re- 
view docs  not  stay  the  execution  of  the  decree  which  is  com- 
plained of;  and  before  any  bill  of  review,  or  other  bill  to  re- 
verse or  alter  a  decree,  can  be  filed,  the  decree  must  be  first 
obeyed  and  performed,  except  that,  if  any  act  is  decreed  to  be 
done  which  extinguishes  a  right  at  common  law  as  the  mak- 
ing of  an  assurance  or  release,  acknowledging  satisfaction,  can- 
celincr  of  bonds  or  evidences,  and  the  like,  the  court  may  dis- 
pense°with  the  actual  performance  of  that  part  of  the  decree 
until  such  bill  is  determined.     Thus,  if  money  is  directed  to  be 
paid    it  ought  to  be  paid  before  the  bill  of  review  is  filed, 
thonMi  it  may  afterwards  be  ordered  to  be  refunded.    The  rule, 
however,  only  r  quires  the  aggrieved  party  to  perform  so  much 
of  the  decree  as  he  was  bound  to  perform  at  the  time  he  files 
the  bill  of  review,  and  does  not  prevent  him  from   filing  the 
bill  before  he  has  performed  the  decree  as  regards  those  things 
which,  by  the  decree,  he  was  not  bound  to  perform  till  a  period 
subsequent  to  the  time  when  the  bill  was  filed."  \ 

One  of  the  ordinances  of  Lord  Bacon,  "for  the  better  and 
more  regular  administration  of  justice  in  chancery,  to  be  daily 
observed,  saving  the  prerogative  of  the  court,"  was  that "  no  bill 
of  review  shall  be  admitted,  or  other  new  bill  to  change  mat- 
ter decreed,  except  that  the  decree  be  first  obeyed  and  per- 
formed "  But  the  harshness  of  these  rules  have  been  more  or 
less  modified,  and  it  was  said  in  Davis  v.  Speiden^  "that  this 
ordinance  was  intended  for  the  regulation  of  procedure  rather 

A         •^^7    -^ftq-    Pa^wfill  V    Caswell,     Elzas.  183  111.  132,  5o  N.  R  673. 

Fed.  512;  United  States  v.  Throck-        »  104  U.  S.  83,  84 
morton,  98  U.  S.  61;    Traphagan  v. 


478  BILL    OF    EEVIEW    AND    BILLS    OF    THAT    NATURE.        [§  34:6. 

than  to  limit  the  jurisdiction  of  the  court  seems  to  us  apparent, 
because  not  only  on  its  face  the  prerogative  of  the  court  is 
saved,  but  as  early  as  1632,  in  Cock  v.  Ilobb^  a  bill  of  review 
having  been  filed  without  performance  of  the  decree,  the  cause 
was  permitted  to  proceed  on  giving  security  for  the  debt 
which  was  decreed  to  be  paid." 

It  was  further  noted  that  where  a  motion  was  made  that 
proceedings  on  decree  be  stayed  until  a  bill  of  review  could 
be  heard,  it  was  ordered  that  the  decree  should  be  performed 
before  any  bill  of  review  would  be  allowed,  unless  the  plaint- 
iff swear  that  he  is  not  able  to  perform  the  decree,  and  will 
surrender  himself  to  be  imprisoned  until  the  matter  be  deter- 
mined upon  the  bill  of  review;  the  court  summing  up  the  mat- 
ter in  this  language:  "These  cases  clearly  show  that  from 
the  beginning  the  ordinance  was  treated  as  a  rule  of  practice, 
and  questions  touching  obedience  to  its  requirements  were  not 
considered  as  matters  of  strict  right,  but  as  governed  by  a 
sound  discretion."  And  so  the  obedience  and  performance  of 
the  decree  has  in  some  respects  been  held  to  be  dispensed  with 
by  the  courts, —  as,  for  example,  where  a  sum  of  money  has 
been  ordered  paid,  and  it  appeared  that  the  party  was  unable 
to  pay  it,  or  had  given  security  for  its  payment,  or  where  ex- 
ecution had  been  levied  for  its  collection.  In  such  cases  the 
courts  hold  that  the  security,  or  the  execution,  stands  in  the 
place  of  the  performance  of  the  decree,  and  in  case  of  inability 
to  pay,  as  in  the  case  of  bankruptcy  or  otherwise,  equity  will 
not  deprive  the  party  of  his  remedy  because  he  has  failed  to 
perform  the  decree.'^  Still  there  are  cases  where  the  rules  of 
practice  would  demand  that  the  decree  be  performed;  as,  for 
example,  if  it  be  for  the  possession  of  land,  the  possession  must 
be  given  up;  or  for  specific  performance  in  the  making  and  ex- 
ecuting of  a  conveyance,  or  any  act  the  performance  of  which 
would  not  give  to  the  adverse  party  undue  or  inequitable  ad- 
vantage. 

In  Manufacturers^^  etc.  Co.  v.  Lindhlom '  a  bill  was  filed  to 
review  a  decree  for  the  payment  of  money,  and  it  was  held 
that  no  stay  of  such  decree  would  be  granted  unless  the  money 
ordered  paid,  be  brought  into  court,  or  security  be  given  for 
its  performance. 

1 5  Rusa  235.  2  story,  Eq.  PI.,  sec.  400.  »  68  III  App.  539. 


§§  347,  348.]       BILL    OF    REVIEW  AND  BILLS  OF  THAT  NATUKE.       479 

§347.  Other  prerequisites.— It  must  appear  in  the  appli- 
cation that  the  decree  which  is  sought  to  be  opened  is  a  final 
decree,  for  a  bill  of  review  lies  only  after  a  final  decree  in  the 
cause.^     And  for  obvious  reasons  a  bill  of  review  will  not  lie 
to  correct  or  change  a  consent  decree."     And  if  the  review  is 
sought  for  upon  the  ground  of  error  of  law  apparent  upon  the 
face  of  the  decree,  it  must  appear,  by  comparison  of  the  de- 
cree,   pleadings   and  other   proceedings,   that  the   court  has 
reached  an  erroneous  conclusion  of  law  as  to  the  rights  of  the 
parties.*    A  bill  of  review  will  not  be  sustained  unless  it  ap- 
pears by  allegations  in  the  bill  that  substantial  injustice  has 
been  done  in  the  rendering  of  the  decree;  that  to  allow  it  to 
stand  the  applicant  would  suffer  injury,  and  if  a  review  of  the 
case  can  be  had  it  would  result  in  a  material  alteration  of  the 
decree.'*     A  bill  of  review  will  not  be  supported  where  it  ap- 
pears that  the  decree  has  been  affirmed  upon  appeal,  nor  will 
a  court  of  chancery  entertain  a  bill  to  review  a  decree  of  the 
supreme  court.*     And  where  by  statute  or  rule  of  court  the 
bill  must  be  filed  within  a  fixed  time,  it  must  appear  by  the 
bill  that  it  is  within  the  time  in  which  bills  of  review  may  be 
filed.     And  so  it  has  been  held  in  the  United  States  court  of 
appeals  that  a  bill  of  review  must  be  filed  within  the  time  al- 
lowed by  statute  for  an  appeal;  but  that  an  attempted  appeal 
to  the  supreme  court  in  a  case  where  no  appeal  to  that  court 
is  allowed  does  not  operate  to  suspend  the  time  within  which 
a  bill  of  review  may  be  filed,  and  that  such  a  bill  must  be  filed 
within  the  six  months  allowed  for  taking  an  appeal.* 

§  348.  Application  for  leave  to  file  a  bill  of  review.—  If 
the  bill  of  review  is  based  upon  new  matter  discovered  since 
the  decree,  it  cannot  be  filed  until  leave  of  court  is  first  ob- 
tained. This  rule  does  not  apply  where  the  grounds  of  the 
bill  are  for  apparent  error  upon  the  face  of  the  decree.   In  such 

1  Savage  v.  Johnson,  125  Ala.  673,  s  Jordan  v.  Hardie,  131  Ala.  72,  31 
28  So.  553;    Ft.  Wayne,  etc.  Co.  v.    So.  504. 

Franklin,  etc.  Co.,  58  N.  J.  Eq.  543,  *  Glover  v.  Jones,  95  Me.  303,  49 

43  Atl.  650;  Story,  Eq.  PI.,  sec.  403;  Atl.  1104. 

Traphagan  v.  Voorhees,  45  N.  J.  Eq.  ^  Murphy  v.  Johnson,  107  Tenn.  553, 

44,   16   Atl.    198;    Read  v.    Franklin  64  S.  W.  894 

(Tenn.  Ch.  App.,  1900),  60  S.  W.  215.  «  Blythe  Co.  v.  Hinckley,  49  G  G 

2  Watts  V.  Rice,  193  111.  123, 61  N.  E.  A.  647,  111  Fed.  827. 
337. 


^80  BILL    OF    REVIEW    AND    BILLS    OF    THAT    NATURE.        [§  348. 

case  leave  of  court  is  not  necessar}',  for  it  is  a  matter  of  ri^'^ht 
of  the  party  to  file  a  bill  of  review.'  But  if  it  be  for  newly- 
discovered  evidence  or  matters  discovered  since  the  decree,  the 
court  will  not  permit  the  bill  to  be  filed  until  it  has  been  de- 
termined by  the  court  upon  formal  application  that  the  bill  will 
be  entertained. 

The  granting  of  a  bill  of  review  on  the  ground  of  newly-dis- 
covered evidence  is  not  a  matter  of  right,  but  it  rests  in  the 
sound  discretion  of  the  court.  And  so,  although  the  facts  if 
admitted  would  change  the  decree,  the  court  may  determine 
that  it  is  best  to  refuse  its  consent  to  the  tiling  of  the  bill,  for 
looking  at  all  the  circumstances  it  might  be  deemed  productive 
of  mischief  to  innocent  parties,  or  for  other  causes  unadvisable, 
and  it  is  for  this  reason  that  the  court  first  requires  an  ex- 
amination of  the  grounds  upon  which  the  bill  is  proposed  and 
to  know  something  of  the  merits  of  the  cause  before  it  is  per- 
mitted to  be  filed.^ 

The  application  for  leave  to  file  the  bill  is  made  by  petition, 
which  should  set  out  the  reasons  for  a  review  of  the  cause.  The 
practice  requires  that  this  petition  should  state  the  nature  of 
the  case,  the  decree,  and  the  grounds  upon  which  the  bill  of 
review  is  sought  to  be  filed.  If  for  errors  apparent  upon  the 
decree,  these  errors  should  be  set  out  explicitly.  If  it  is  founded 
upon  the  discovery  of  new  matter,  the  petition  should  describe 
the  new  evidence  distinctly  and  specifically,  stating  when  it 
was  discovered  and  its  bearing  upon  the  decree.  And  it  is  not 
sufficient  that  the  application  should  state  that  the  petitioner 
expects  to  prove  certain  facts.  He  must  set  forth  the  exact  evi- 
dence he  expects  to  establish,  giving  the  reasons  for  it,  and  the 
better  practice  would  seem  to  be  that  he  should  file  the  affidavits 
of  persons  upon  whom  he  relies  for  the  evidence  discovered,' 

1  Elliott  V.  Balcom  et  al.,  77  Mass.  cases  where  the  facts,  if  admitted  or 
(11  Gray),  286,  300.  proved,  would  ordinarily  form  suf- 

2  Dexter  v.  Arnold,  5  Mason,  303,  ficient  ground  for  review,  yet.  look- 
315;  Thomas  v.  Harvie,  10  Wheat,  ing  at  all  the  circumstances,  a  court 
(U.  S.)  146.  In  Elliott  v.  Balcom  et  al.,  of  equity,  out  of  regard  to  the  rights 
77  -Mass.  (11  Gray),  286,  300,  the  court  of  innocent  parties,  would  withhold 
say:  "The  granting  of  such  a  bill,  itsconsent,  and  refuse  to  give  a  party 
for  causes  not  apparent  on  the  face  the  privilege  of  reversing  a  decree 
of  the  record,  is  not  a  matter  of  by  means  of  a  bill  of  review." 
right,  but  rests  in  the  sound  discre-  3  In  Dexter  v.  Arnold,  5  Mason 
tion  of  the  court.    There  may   be  (U.  S.).  301,  316,  it  was  said:  "Apeti- 


§  349.]         BILL    OF    EEVIEW    AND    BILLS    OF    THAT    NATURE.  481 

The  real  merits  of  the  case  are  necessarily  thoroughly  ex- 
aminad  on  the  hearing  of  the  petition,  but  it  is  held  that  the 
determination  of  the  court  thereon  does  not  extend  beyond  the 
issue  then  before  the  court  upon  the  petition,  and  that  the  find- 
ings of  the  court  upon  that  question  are  in  no  way  conclusive 
upon  the  hearing  of  the  cause  upon  bill  of  review,  and  that  the 
facts  that  are  put  in  issue  by  the  bill  of  review  and  the  answer 
thereto  are  fully  open  to  inquiry  and  investigation,  and  are  to 
be  determined  independent  of  the  findings  of  the  court  upon 
the  petition  for  application  to  file  the  bill.^ 

§  349.  The  hearing  of  petition  for  leave  and  the  order 
thereon. —  The  opposite  party  is  entitled  to  service  of  copy  of 
the  petition  or  application  for  leave  to  file  the  bill  of  review, 
together  with  notice  of  the  time  and  place  of  its  hearing.  At 
the  hearing  of  the  petition  affidavits  may  be  presented  on  both 
sides  if  necessary  to  explain  the  nature  of  the  evidence  that  is 
sought  to  be  introduced  and  which  has  been  discovered.  The 
whole  matter  is  laid  before  the  chancellor  upon  the  hearing  of 
the  application  so  that  he  may  have  a  knowledge  of  its  merits 
and  may  exercise  a  wise  and  judicial  discretion  as  to  the  pro- 
priety of  interfering  or  meddling  with  the  decree.  The  court 
is  not  only  to  determine  at  this  time  the  relevancy  and  impor- 
tance of  the  proof  sought  to  be  introduced  by  the  applicant  and 
the  probability  of  its  changing  the  existing  decree,  but  it  is  to 
determine  whether  the  prerequisites  to  the  filing  of  such  a  bill 
exist;  for  if  the  proof  could  have  been  adduced  at  the  former 
hearing  of  the  cause,  or  if  there  has  been  negligence  upon  the 
part  of  the  applicant  in  obtaining  the  proof,  or  if  to  allow  the 
cause  to  be  reheard  the  result  would  be  unconscionable  or  in- 
equitable, the  application  will  be  dismissed.^ 

If  upon  the  hearing  the  court  finds  that  leave  to  file  the  bill 
should  be  granted  as  prayed  in  the  petition,  an  order  to  that 
effect  will  be  entered,  whereupon  the  applicant  will  be  per- 

tion  for  leave  to  file  a  bill  of  review  bears  on  the  decree,  that  the  court 
for  newly-discovered  matter  should  may  see  its  relevancy  and  the  pro- 
contain  in  itself  an  abstract  of  the  priety  of  allowing  it."  Cooper's  Eq. 
former  proceedinj^s.  the  bill,  answers,  PI.  92. 

decree,  etc..  and  sliould  then  specific-  i  Elliott  v.  Balcom  et  al.,  77  Mass. 

ally  state  wh;it  the  newly-discovered  (11  Gray),  286,  aOO. 

matter  is,  ami  when  it  first  came  to  ^  Wethered  v.   Elliott,  45  W.  Va. 

the  party's  knowledge,  and  how  it  436,  32 S.  E.  209, 
31 


482  BILL    OF    REVIEW    AND    BILLS    OF   THAT    NATURE.       [§  350. 

mitted  to  file  the  bill  as  prayed  in  his  petition,  otherwise  tbe 
application  will  be  refused. 

§  350.  Parties  to  the  bill. —  As  a  general  rule,  all  parties 
to  the  original  action  should  be  made  parties  to  the  bill  of  re- 
view. But  as  we  have  seen,  a  party  cannot  file  a  bill  of  review 
if  he  is  not  interested  in  the  question  intended  to  be  presented 
by  it;  and  if  he  has  not  been  injured  by  the  former  decree, 
even  though  he  may  have  an  interest  in  the  cause,  the  court 
would  not  permit  him  to  file  a  bill  of  review  merely  because 
it  was  injurious  to  third  parties ;  he  must  allege  and  show  that 
it  is  injurious  to  him.^  The  party  plaintiff  to  the  bill  of  re- 
view may  have  been  a  party  defendant  in  the  original  suit,  for 
the  bill  of  review  is  to  be  filed  by  a  person  who  has  obtained 
leave,  having  been  injured  by  the  former  decree  because  it 
violates  his  legal  or  equitable  right.  In  other  respects  the 
rules  pertaining  to  the  bringing  in  of  parties  in  chancery  causes 
generally  obtains. 

The  parties  to  the  original  suit  and  their  privies  in  repre- 
sentation, as  heirs,  executors  and  administrators,  can  have  a 
bill  of  review,  but  "other  persons  in  interest  and  in  privity  of 
title  or  estate  who  are  aggrieved  by  the  decree, —  such  as  dev- 
isees and  remaindermen, —  are  entitled  to  maintain  an  orig- 
inal bill  in  the  nature  of  a  bill  of  review  so  far  as  their  own 
interests  are  concerned,"^  And  so  it  has  been  held  that  "if 
any  person  not  a  party  to  the  original  suit  has  become  inter- 
ested in  the  subject-matter,  he  must  be  made  a  party  to  the 
bill  of  review." ' 

1  Allgood  V.  Bank,  130  Ala.  237,  29  view  ought  to  have  the  same  parties 
So.  855.  that  were  to  the  proceedings  sought 

2  2  Barb.  Ch.  (Book  4,  ch.  6),  95.  to   be   reversed,   but  may  be   made 
8  2  Danl.  Ch.  PI.  &  Pr.  1580;  Story,     complainants  or  defendants  accord- 

Eq.  PL,  sec.  420.  In  Elwell  v.  Syl-  ing  to  their  respective  interests  in 
vester,  27  Me.  536,  538.  it  is  said:  "A  the  matter  to  be  reviewed.  Debeli 
review  only  brings  the  former  par-  v.  Foxworthy,  48  Ky.  (9  B.  Monroe), 
ties  and  their  proceedings  before  the  228:  Friley  v.  Hendricks,  27  Mis&  (5 
court.  It  can  do  no  more.  The  writ  Coshm.)  412;  Amiss  v.  McGinnis,  13 
of  review  must  be  sued  out  by  a  W.  Va,  371;  Mickie  v.  Maxfield,  42 
party  to  the  former  suit,  or  by  one  Mich.  304;  Story,  Eq.,  sec.  409.  One 
representing  the  interest  of  a  party."  who  is  not  a  party  to  the  original 
Nowell  V.  Sanborn,  44  Me.  80;  Coch-  suit  and  whose  rights  are  in  no  man- 
ran  V.  Couper,  2  Del.  Ch.  27;  Turner  ner  affected  by  the  decree  is  not  en- 
V.  Berry,  8  111.  (3  Gil.)  541.  In  Sloan  titled  to  file  a  bill  of  review.  Chan- 
V.  Whiteman,  6  Ind.  434,  it  was  held  cellor  v.  Spencer,  40  W.  Va.  337,  21 
to  be  a  general  rule  that  a  bill  of  re-  S.  E.  1011. 


483 


§  351.]        BILL   OF    KEVIEW    AND    BILLS    OF    THAT    NATURE. 

8  351    Frame  of  the  bill  of  review.- From  the  nature  of 
the  relief  sought,  it  will  be  seen  that  it  is  necessary  in  framing 
a  bill  of  review  to  set  out  the  former  bill,  the  proceedings 
thereon,  the  decree  that  was  had  at  the  hearing,  and  to  allege 
with  particularity  the  special  manner  in  which  the  party  ex- 
hibitino-  the  bill  has  been  injured  or  aggrieved  by  it,  and  tbe 
crround'upon  which  the  right  to  review  the  cause  is  claimed 
!t  is  not  necessary  to  set  forth  in  this  bill  the  evidence  that 
was  adduced  at  the  hearing,  but  depending,  of  course,  upon 
the  ground  alleged  as  reasons  for  setting  the  decree  aside,  it 
mav  be  necessary  to  set  forth  the  substance  of  some  portions 
of  the  proof.    As,  for  example,  if  the  bill  rests  upon  the  ground 
that  the  decree  is  erroneous  for  reasons  apparent  upon  the 
face  of  it,  the  substance  of  the  pleadings,  the  decree  and  suf- 
ficient of  the  proceedings  to  illustrate  the  decree  and  the  error 
complained  of  should  be  set  out  in  the  bill  of  review. 

If  the  around  alleged  is  that  new  evidence  has  been  discov- 
ered  whfch,  if  brought  to  the  attention  of  the  court  at  the 
time  of  the  hearing,  would  have  changed  the  opinion  of  the 
court  and  resulted  in  a  different  decree,  the  pleadings,  decree 
and  sufficient  of  the  proofs  at  the  hearing  should  be  stated  in 
the  bill  to  fully  illustrate  the  force  of  the  newly-discovered 
evidence,  together  with  allegations  of  the  inability  of  the  com- 
plainant to  have  produced  the  proof  at  the  hearing  and  to  show 
that  he  was  not  guilty  of  negligence  in  that  respect,  and  that 
he  had  no  knowledge  of  its  existence  at  the  time.     The  whole 
matter  of  the  stating  part  of  a  bill  of  review  may  perhaps  be 
summed  up  bv  stating  that  the  facts  alleged  must  clearly  show 
that  the  complainant  is  entitled  to  the  relief  prayed  for,  and 
that  the  bill  is  sufficient  to  support  a  decree  setting  aside  the 
former  decree  and  allowing  its  reformation  as  prayed  in  the 

bill.  ,     ^       •        4= 

Lord  Redesdale  gives  the  following  rules  for  the  framing  ot 
a  bill  of  review:  "In  a  bill  of  this  nature  it  is  necessary  to 
state  the  former  bill,  and  the  proceedings  thereon;  the  decree, 
and  the  point  in  which  the  party  exhibiting  the  bill  of  review 
conceives  himself  aggrieved  by  it;  and  the  ground  of  law,  or 
new  matter  discovered  upon  which  he  seeks  to  impeach  it;  and 
if  the  decree  is  impeached  on  the  latter  ground,  it  seems  nec- 
essary to  state  in  the  bill  the  leave  obtained  to  file  it  and  the 
fact  of  the  discovery,  though  it  may  be  doubted  whether,  after 


484  BILL    OF   KEVIEW    AND    BILLS    OF    THAT   NATURE.        [§  351. 

leave  given  to  file  the  bill,  that  fact  is  traversable.  The  bill 
may  pray  simply  that  the  decree  may  be  reviewed  and  reversed 
in  the  point  complained  of,  if  it  has  not  been  carried  into  ex- 
ecution. If  it  has  been  carried  into  execution,  the  bill  may 
also  pray  the  farther  decree  of  the  court,  to  put  the  party  com- 
plaining' of  the  former  decree  into  the  situation  in  which  he 
would  have  been  if  that  decree  had  not  been  executed.  If  the 
bill  is  brought  to  review  the  reversal  of  a  former  decree,  it 
may  pray  that  the  original  decree  may  stand.  The  bill  may 
also,  if  the  original  suit  has  become  abated,  be  at  the  same 
time  a  bill  of  revivor.  A  supplemental  bill  may  likewise  be  added, 
if  any  event  has  happened  which  requires  it;  and  particularly 
if  any  person  not  a  party  in  the  original  suit  becomes  inter- 
ested in  the  subject,  he  must  be  made  a  party  to  the  bill  of  re- 
view by  way  of  supplement."  ' 

The  bill  should  be  signed  by  counsel  and  should  conform 
generally  to  the  requirements  applicable  to  original  bills,  as 
to  filing  service  of  copies  and  appearance  of  defendant;  the 
practice  in  these  respects  conforming  to  the  rules  of  court 
already  discussed.  The  defendant  should  be  served  with  pro- 
cess and  jurisdiction  obtained  as  in  cases  of  oriij^inal  bills.  A 
bill  which  unites  several  different  and  distinct  grounds  of 
review,  which,  in  their  disposition,  would  involve  different 
relief  and  separate  defenses,  would  be  multifarious.  But  if  the 
grounds  relied  upon  in  the  bill  are  consistent  and  harmonious, 
there  is  no  objection  to  allowing  a  bill  of  review  upon  several 
grounds.'^ 

In  Kimherly  v.  Arms^  the  court  say:  "  It  may  be  doubted 
whether  it  is  in  consonance  with  proper  practice  thus  to  join 

1 1  Foster.  Fed. Pr. 792;  Mitf.  Pl.,cli.  1,  good  on  either  ground  it  will  be  sus- 

sec.  3:  Whiting  V.  Bank,  13 Pet.  (U.S.)  tained.        In    Winchester    v.    Win- 

6;  Story,  Eq.  PI.,  sec,  4:20;  Glover  v,  Chester,  38  Tenn.    (1    Head),   460,   a 

Jones,  95  Me.  306,  49  Atl.  1104;  Steen  like  bill  was    held   good,   and   that 

V.  March,  132  Cal.   616,  64  Pac.  994;  the  two  causes  or  grounds  might  be 

Halstead  v.  Forest  Hill  Co.,  109  Fed,  joined  in  the  same  bill.     Murphy  v. 

820.  Branaman,  156  Ind.  77,  59  N.  E.  274; 

2  In  Colville  v.  Colville,  28  Tenn.  (9  Heiskell  v.  Galbraith  (Tenn.  Ch.  App., 

Humph.)  524,  it  was  held  that  a  bill  1900),  59  S.  W.  346. 

of  review  to  correct  errors  apparent  '40  Fed.  548,  559;  Perry  v,  Phelips, 

upon  the  face  of  the  decree  and  for  17  Ves.  173;  Attorney-General  v.  Col- 

newly  discovered  matter  is   proper  lege,  7  Sim,  254. 
and  is  not  multifarious,  and  if  found 


§S  352,  353.]       BILL   OF    REVIEW  AND  BILLS  OF  THAT  NATURE.       485 

or  unite  in  one  bill  several  different  and  distinct  grounds  of 
review,  which  invoke  different  relief  under  each  branch,  and 
separate  defenses  to  the  several  parts  of  the  bill.     The  object 
and  effect  of  that  branch  of  the  bill  resting  on  fraud  is  to  va- 
cate  the  decree  in  toto,  not  to  retry  the  case;  and  the  fraud 
should  be  of  such  character  as  to  warrant  that  relief.     The 
object  and  effect  of  a  bill  of  review  for  error  of  law  apparent 
upon  the  face  of  the  record  is  to  reverse  the  decree  so  far  as 
erroneous  and  to  retry  the  cause   upon  the  original  record, 
while  the  purpose  and  effect  of  a  bill  of  review  based  upon 
newly-discovered  evidence  is  to  suspend  the  decree  and  retry 
the  cause  upon  the  original  and  new  proof.     To  unite  these 
three  grounds  of  review  and  relief  in  one  and  the  same  bill 
must  lead  to  great  confusion  and  render  the  bill  multifarious." 
§352.  Bills  in  the  nature  of  bills  of  review.— The  pure 
bill  of  review  is  generally  confined  to  the  parties  in  the  origi- 
nal cause,  and  generally  only  parties  to  the  decree,  or  their 
privies  by  operation  of  law,  as  heirs,  executors  or  administra- 
tors, are  entitled  to  file  a  bill  of  review.     But  it  often  happens 
that  other  persons  obtain  interests  which  are  affected  by  the 
decree,  as  assignees  or  devisees;  these  parties,  while  not  tech- 
nically parties  to  a  bill  of  review,  are  not  left  without  a  remedy ; 
they  will  be  permitted,  when  injured  by  the  decree,  to  file  a  bill 
in  the  nature  of  a  bill  of  review. 

Upon  this  subject  Lord  Kedesdale  says:  "  If  a  decree  is  made 
against  a  person  who  had  no  interest  at  all  in  the  matter  in 
dispute,  or  had  not  such  an  interest  as  was  sufficient  to  render 
the  decree  against  him  binding  upon  some  person  claiming  the 
same  or  a  similar  interest,  relief  may  be  obtained  against  error 
in  the  decree  by  a  bill  in  the  nature  of  a  bill  of  review;  ... 
as  it  does  not  seek  to  alter  a  decree  made  against  the  plaintiff 
himself,  or  against  any  person  under  whom  he  claims,  may  be 
filed  without  the  leave  of  the  court."  ^ 

§  353.  Bills  to  impeach  the  decree  on  account  of  fraud.— 
A  bill  of  this  kind  is  no  doubt  in  the  nature  of  an  original  bill; 
the  fraud  alleged  raises  an  independent  issue,  one  in  no  wise 
involved  in  the  original  cause,  and  so  it  becomes  necessary  to 
establish  it  by  proof  before  the  propriety  of  the  decree  can  be 

1  Mitf.  &  Tyler's  PI.  &  Pr.  in  Eq.  190. 


486  BILL    OF    KEVIEW    AND    BILLS    OF    THAT    NATURE.      [§  353. 

investigated.  But  it  has  been  said  that  "  where  a  decree  has 
been  so  obtained  the  court  will  restore  the  parties  to  their  for- 
mer situation  whatever  their  rights  may  be.  .  .  .  Where 
an  improper  decree  has  been  made  against  an  infant,  without 
actual  fraud,  it  ought  to  be  impeached  by  original  bill." '  Such  a 
bill  must  not  only  state  the  proceedings  that  led  up  to  the  decree 
and  the  decree  that  was  obtained,  but  it  must  clearly  set  forth 
the  fraud  which  is  relied  upon  to  impeach  the  decree,  and  this 
must  be  so  explicitly  set  forth  that  the  court  and  the  opposite 
party  may  be  made  aware  of  the  facts  which  it  is  claimed  con- 
stitute the  fraud  complained  of.  It  must  also  clearly  allege 
that  damage  has  resulted  from  such  fraud  to  the  complainant, 
and  that  he  is  injured  thereby.  And  it  has  been  said  that 
fraud,  and  damages  resulting  from  such  fraud,  must  be  coupled 
together  to  entitle  the  injured  party  to  relief  in  a  court  of 
equity.* 

The  prayer  of  the  bill  must  necessarily  be  according  to  the 
nature  of  the  fraud  alleged  and  the  extent  of  its  operation  in 
obtaining  the  improper  decree.  In  such  a  bill  all  the  parties 
to  the  original  suit  and  their  representatives  should  be  made 
parties.^  It  must  also  be  shown  by  the  bill  that  there  is  a 
valid  and  meritorious  defense  to  the  original  bill,  and  that 
the  fraud  relied  upon  was  controlling  in  the  determination  of 
the  original  case  on  its  merits.^ 

Another  bill  in  the  nature  of  a  bill  of  review  mentioned  bv 
the  writers  upon  this  subject  is  a  bill  to  avoid  the  operation  of 

1  Mitf.  &  Tyler's  PI.  &  Pr.  in  Eq.  191.  done  by  petition:  although  it  seems 

2  Hargro\  es  v.  Nix,  14  Ga.  310.  once  to  have  been  thought  that  a  de- 

3  Harwood  V.  Railway  Co.,  17  Wall,  cree,  as  well  as  an  interlocutory 
(U.  S.)  78.  Of  this  class  of  cases  order,  could  be  set  aside  for  fraud 
Judge  Story  says  (sec.  426):  "A  bill  by  petition  only.  Where  a  decree 
of  this  sort  is  an  original  bill  in  the  has  been  so  obtained  the  court  will 
nature  of  a  bill  of  review.  There  is  restore  the  parties  to  their  former 
no  doubt  of  the  jurisdiction  of  courts  situation,  whatever  their  rights  may 
of  equity  to  grant  relief  against  a  be.  This  kind  of  bill  may  be  filed 
former  decree,  where  the  same  has  without  leave  of  the  court  being 
been  obtained  by  fraud  and  imposi-  first  obtained  for  the  purpose,  the 
tion;  for  thesi  will  infect  judgments  fraud  used  in  obtaining  the  decree 
at  law  and  decrees  of  all  courts;  but  being  the  principal  point  in  is.sue, 
they  annul  the  whole  in  the  consid-  and  being  necessary  to  be  established 
eration  of  courts  of  equity.  This  by  proof  before  the  propriety  of  the 
must  be  done   by  an   original   bill;  decree  can  be  investigated." 

and  there  is  no  instance  of  its  being        *  Kimberly  v.  Arms,  40  Fed.  548. 


§§  354,  356.]      BILL   Ol-   REVIEW  AND  BILLS  OF  THAT  HATUEE.      437 

a  decree.  It  is  seldom  it  ever  used.  An  instance  is  given  by 
lord  Eedesdale  in  his  work  on  Equity  Pleading.  It  has  been 
held  that  an  original  bill  in  the  nature  of  a  bdl  of  ravew  to 
set  aside  a  decree  tor  fraud  may  be  filed  without  first  obtain- 

ins:  leave  of  the  court.^ 
1  354    Bills  to  carry  decrees  into  execution.— It  so..ic- 

times  happens  that,  from  the  neglect  of  parties  or  other  causes 
it  becomes  impossible  to  carry  a  decree  into  execution  without 
some  further  decree  of  the  court.     Such  are  cases  where,  alter 
neo-lecting  the  execution  of  the  decree,  circumstances  have  in- 
tervened which  more  or  less  disturb,  if  they  do  not  change, 
the  riohts  of  the  parties  so  that  it  becomes  necessary  to  bring 
the  m^atter  before  the  court  for  its  adjudication.     These  bills 
may  be  instituted   by  persons  who  were  not  parties  to  the 
orio-inal  suit,  but  who  have  obtained  equitable  or  legal  rights 
bvl-eason  of  the  decree,  and  are  unable  to  obtain  a  determina- 
tion of  them  without  carrying  into  execution  the  decree  of  the 
court     They  are  said  to  be  partly  original  bills  and  partly 
bills  in  the  nature  of  original  bills,  and  sometimes  bills  of  re- 
vivor or  supplemental  bills  in  the  nature  of  bills  of  revivor. 
The  frame  of  the  bill,  of  course,  depends  upon  the  circum- 
stances which  govern  the  particular  case.' 

g  355.  When  should  the  hill  he  filed.- There  is  no  fixed 
rule  as  to  the  time  when  the  bill  of  review  must  be  filed.  By 
analoc^y  it  has  been  held  that  a  bill  of  review  must  be  filed 
within  the  time  limited  by  law  for  taking  an  appeal,  and  this 
seems  generally  to  be  acceded  to.  This  was  laid  down  in  an 
early  case  in  the  United  States  court.*  In  McDonald  v.  Whit- 
ney' the  court  say:  "From  analogy  to  the  time  within  which 
by  law  an  appeal  may  be  taken  from  the  circuit  court  to  the 
supreme  court,  the  supreme  court  have  established  the  same 
limitation  respecting  bills  of  review,  whenever  the  ground  of 
the  bill  is  error  on  the  face  of  the  decree." «     The  time  within 

iMitf  Eq  PI.  94.  6  Whiting  v.  Bank,  13  Pet.  (U.  S.) 

2  Ritchie  V.  Burke,  109  Fed.  16;  6;  Ricker  v.  Powell,  100  U.  S.  104.  In 
Cox  V  Blk,  etc.  (Tenn.  Ch.  App.,  Reed  v.  Stanley,  58  C.  C.  A  331,  97 
1900\  63  S.  W.  237.  Fed.  531,  it  was  held  that  the  rule 

3  Story  Eq.  PL  429,  432.  was  well   established  in    courts  of 
4Thomas  v.HarvieetaUlOWheat.    equity  of  the  United  States  that  the 

(U  S.)  146  ^^^^  "^"^*  ^^  ^^^^  within  the  tinae  al- 

839  Fed!  466.  \ovfeA  for  appeals.   Ingles  v.  Bryant, 


488  BILL   OF   REVIEW    AND    BILLS    OF   THAT    NATURE.        [§  356. 

which  the  bill  may  be  filed  has,  in  some  jurisdictions,  been  set- 
tled by  rule,  and  there  have  already  been  conditions  attached 
by  way  of  requiring  a  certain  amount  to  be  deposited  for  pay- 
ment of  costs  under  certain  circumstances.  All  this  will  be 
discovered  by  consulting  the  rules  established  in  the  different 
jurisdictions. 

§  35G.  Defenses  to  bills  of  review. —  As  a  general  rule  it 
may  be  stated  that  a  bill  of  review  is  subject  to  the  same  de- 
fenses that  apply  to  an  original  bill.  The  defendant  may  demur, 
plead  or  answer,  and  for  the  same  reasons  applicable  to  defenses 
to  original  bills.  The  most  usual  and  natural  defense  to  a  bill 
of  review  based  upon  error  apparent  upon  the  face  of  the  de- 
cree is  by  demurrer.  The  bill  itself  raises  a  question  of  law. 
It  sets  out  the  error  complained  of,  and  insists  that  because  of 
its  existence  the  decree  should  be  set  aside  and  the  cause  re- 
viewed. A  demurrer  is,  therefore,  a  very  proper  defense  to 
such  a  bill.  If  the  demurrer  is  sustained  the  effect  is  to  con- 
firm the  decree  already  made  and  end  the  suit. 

If  the  bill  is  founded  upon  newly-discovered  evidence,  the 
sufficiency  of  the  evidence  has  presumably  been  passed  upon  by 
the  court  in  allowing  the  bill  to  be  filed.  But  this  does  not 
preclude  the  defendant  from  filing  a  demurrer,  if,  admitting  the 
allegations  of  the  bill,  he  may  meet  the  case  made.  If  he  de- 
sires to  controvert  the  facts  alleged  as  new  matter,  he  may 
answer  the  bill  and  introduce  evidence  to  controvert  its  alle- 
gations the  same  as  though  the  bill  were  an  original  bill.'  But 
it  has  been  held  that  a  defense  that  the  decree  was  a  consent 
decree  must  be  pleaded  if  it  does  not  appear  upon  the  face  of 
the  bill.2 

Where  the  former  decree  is  fully  and  fairly  stated  in  the  bill, 
it  is  not  necessary  to  plead  it.  And  where  it  was  sought  to 
review  a  case  and  set  aside  the  decree  upon  the  ground  of 
fraud  in  obtaining  it,  the  bill  alleging  the  fraud  of  certain 
school  and  township  officers,  whereby  a  large  judgment  was 
obtained  against  the  township,  but  failing  to  show  that  the 

1.17  Mich.  113;  Dunfee  v.  Childs,  45  i  Dexter  v.  Arnold,  5  Mason  (U.  S.), 

W.  Va.  155;  BIythe  Co.  v.  Hinckley,  303. 

49  C.  C.  A.  647,"  111  Fed.  837;  Cope-  2 Turner  v.   Berry,   8  111.   (3  GIL) 

land  V.  Bruning,  104  Fed.  169.  541. 


§  357.]        BILL    OF    REVIEW    AND    BILLS    OF   THAT    NATURE.  iSQ 

plaintiff  who  procured  the  judgment  was  guilty  of  any  fraud, 
it  was  held  that  the  bill  was  subject  to  a  demurrer.^ 

§  357,  The  hearing.— The  hearing  upon  the  bill  of  review 
follows  as  nearly  as  possible  the  hearing  in  cases  of  original 
bills,  but  the  results  or  decree  must,  from  the  very  nature  of 
the  bill  and  the  prayer  for  relief,  bo  somewhat  different.     If 
the  bill  be  founded  upon  error  apparent  upon  the  face  of  the 
decree,  it  generally,  if  not  universally,  raises  an  issue  at  law, 
and  the  hearing  is  like  the  hearing  upon  a  demurrer,  an  argu- 
ment of  the  law  issue  involved.     If  the  bill  of  review  be  sus- 
tained, the  decree  will  be  reversed ;  and  if  it  rests  entirely  upon 
the  reasons  involved  and  alleged  in  the  bill  of  review,  a  final 
decree  for  the  plaintiff  may  be  entered ;  but  if  there  should  be 
other  questions  involved  in  the  original  cause,  and  which,  be- 
cause of  the  reversal  of  the   former  decree,  remain  undeter- 
mined, the  original  cause  would  necessarily  be  reheard.    If  the 
bill  of  review  in  such  case  is  dismissed  at  the  hearing,  then  the 
former  decree  would  be  affirmed  and  be  final.     If  the  bill  of 
review  be  one  founded  upon  new  matter,  or  for  newly-discov- 
ered evidence,  the  cause  would  be  heard  upon  proof  adduced 
before  a  master,  or  in  open  court,  as  the  rules  and  practice  in 
the  particular  jurisdiction  provide,  and  a  decree  reversing  or 
affirming  the  former  decree,  as  the  court  may  find,  would  be 
entered.     If  the  new  matter  in  such  case  is  found  by  the  court 
as  alleged,  and  it  is  sufficient  with  the  proofs  already  before 
the  court  and  no  sufficient  defense  is  made,  the  court  may 
make  a  final  decree  in  the  cause  reversing  the  former  decree 
and  finding  a  decree  for  the  opposite  party.     If,  however,  the 
court  finds  that  the  new  matter  is  not  sufficient  to  reverse  the 
decree  already  made,  the  bill  of  review  will  be  dismissed  and 
the  decree  stand  affirmed.     The  findings  of  fact  on  the  hearing 
of  petition  for  leave  to  file  a  bill  of  review  are  not  conclusive, 
nor  are  they  in  any  way  binding  upon  the  court  at  the  final 
hearing  of  the  cause  upon  the  bill  of  review.- 

i  Webb  V.  Pell,  3  Paige  (N.  Y.),  368.  that  the  defendants  were  duly  served 

2 1  Danl.  Ch.  PI.  &  Pr.  {4th  ed.)  1578,  with  process  in  the  suit  in  which  the 

uota  decree  was  rendered,  and  that  the 

In  Loftis  V.  Butler  (Tenn.  Ch.  App.,  decree  was  within  the  pleadings  and 

1900),  58  S.  W.  886,  where  it  appeared  no  fraud  was  alleged  in  the  bill  of 


490  BILL    OF   REVIEW    AND   BILLS    OF   THAT   NATDKE.       [§  357a. 

If  the  bill  be  a  supplemental  bill  in  the  nature  of  a  bill  of 
review,  or  an  original  bill  in  the  nature  of  a  bill  of  review,  as 
where  the  original  decree  was  made  against  a  person  who  had 
no  interest  in  the  subject-matter,  or  not  such  an  interest  as 
would  support  a  decree  against  him,  at  the  hearing  of  such  a 
case  the  court  may  reverse  the  decree  as  to  such  person  and 
find  a  final  decree  dismissing  the  original  bill  as  to  him.  Or,  if 
the  court  should  find  that  the  plaintiff  in  the  supplemental 
bill  in  the  nature  of  a  bill  of  review  did  not  have  a  sufficient 
interest  to  support  the  decree  had  he  been  made  a  party  in  the 
original  bill,  in  such  case  the  court  may  find  and  enter  a  de- 
cree affirming  the  former  decree  as  to  such  plaintiff. 

§  357a.  Enforcement  of  decree  —  Writ  of  execution. — 
The  suit  having  been  determined,  the  decree  settled,  signed 
and  enrolled,  becomes  operative,  and  may  be  enforced  accord- 
ing to  its  terms.  If  some  duty  is  required  to  be  performed  on 
the  part  of  the  defendant  or  complainant,  and  these  parties 
should  fail  to  perform,  the  decree  will  stand  for  its  perform- 
ance; as  where  a  conveyance  or  writing  obligatory  is  ordered, 
to  show  chain  of  title.  In  every  decree  there  is  usually  an' 
order  for  the  payment  of  money,  at  least  costs  to  be  taxed, 
and  often  an  amount  for  damages  awarded  or  for  deficiency, 
if  any  after  sale  of  pledged  or  mortgaged  property;  in  such- 
cases  the  statutes  of  the  different  states  provide  for  the  issu- 
ance and  levy  of  a  writ  of  execution  for  the  satisfaction  of  the 
amount.  In  cases  where  reference  has  been  made  to  a  mas- 
ter, execution  cannot  be  issued  until  his  report  of  the  amount 
due  has  been  made  and  confirmed  by  the  court.  In  some  juris- 
dictions the  execution  issues  as  of  course;  in  others  formal  ap- 
plication must  be  made  by  petition  served  and  heard  in  the- 
usual  way. 

review,  the  court  held  that  it  would  a  decree  is  in  accordance  with  the 

not  look  beyond  the  record  to  deter-  allegations  of  a  bill  and  authorized 

mine  whether  the  evidence  was  suf-  by  the  evidence  where  such  objec- 

ficient  to    support   the    decree.     In  tion  was  not  one  specified  in  the  bill 

Glover  v.  Jones,  95  Me.   303,  49  Atl.  of  review  as  cause  for  reversing  the 

1104,  it  was  held  that  the  court  would  decree, 
determine  on  abillof  review  whether 


CHAPTER  XYII. 


APPEALa 


§  358.  The  nature  of  the  appeal  in 
equity. 

359.  Appeal  lies  — Final  decree. 

360.  By  whom  taken. 

361.  The   procedure  in   obtaining 

and  perfecting  an  appeal 


§  363.  Dismissal  of  the  appeal 

363.  Notice  of  motion   to  dismiss 

appeal. 

364.  The  hearing. 

365.  The  decision  and  decree  of  the 

court. 


§  358.  The  nature  of  the  appeal  in  equity.— By  an  appeal 
in  equity  is  meant  that  proceeding  by  which  a  case  that  has 
been  finally  determined  in  an  inferior  equity  court  is  removed 
to  a  superior  or  appellate  court  for  review  and  determination 
by  that  court  upon  the  same  pleadings  and  proofs  upon  which 
it  was  heard  and  determined  in  the  inferior  court.  It  is  espe- 
cially applicable  to  suits  in  equity,  and  is  the  only  proceeding 
by  which  an  equity  case  may  be  removed  to  an  appellate  court 
for  a  rehearing.  In  an  early  case  it  was  said :  "  An  appeal  is 
a  process  of  civil-law  origin  and  removes  a  cause  entirely,  sub- 
jecting the  facts  as  well  as  the  law  to  a  review  and  retrial; 
but  a  writ  of  error  is  a  process  of  common-law  origin,  and  it 
removes  nothing  for  re-examination  but  the  law."  ' 

The  term  "appeal"  is  often  used  in  the  United  States  in  a 
general  sense  as  embracing  the  review  of  all  cases  whether  in 
Taw  or  in  equity,  but  suits  at  law  are  generally  removed  to  the 
appellate  court  by  a  writ  of  error,  while  suits  in  equity  are 
heard  upon  an  appeal.  This  distinction  has  met  with  the  ap- 
proval of  the  courts,  and  so  it  follows  that  an  equity  case  in  a 
technical  sense  cannot  be  said  to  be  heard  by  the  appellate 
court  upon  writ  of  error  but  upon  appeal.  It  has  been  held 
that  the  word  "  appeal "  in  its  technical  sense  denotes  the  civil- 
law  mode  of  transferring  a  cause  to  a  superior  tribunal  for  a 
re-examination  on  the  matter  of  facts  as  well  as  of  law  as  dis- 

1  Wiscart  et  aL  v.  Dauchy,  3  Dallas  (U.  S. ),  321,  327.     For  a  full  discussion 
of  this  matter,  see  United  States  v.  Wonson,  1  Gall.  (U.  S.)  4,  12. 


492 


APPEALS. 


[§  359. 


tinguished  from  a  writ  of  error,  by  which  errors  in  matters  of 
law  are  alone  submitted  for  revision.^  It  may,  therefore,  be 
said  to  be  a  general  rule  that  a  writ  of  error  does  not  lie  to  re- 
move a  suit  in  equity  to  a  superior  court  for  review  in  the 
absence  of  statutory  provisions  enlarging  the  functions  of  that 
writ. 

§  359.  Appeal  lies  —  Final  decrees. —  An  appeal  in  equity 
lies  only  from  a  final  decree  and  not  from  a  mere  interlocutory 
order.  It  has  been  said  that  "  it  has  not  always  been  easy  to 
decide  when  decrees  in  equity  are  final  within  this  rule,  and 
there  may  be  some  apparent  conflict  in  the  cases  on  that  sub- 


1  Noe  V.  United  States,  Hoffman. 
Land  Cas.  242.  In  Springer  v. 
Springer,  43  Pa.  St.  518,519,  the  court 
say:  "A  writ  of  error  cannot,  witli- 
oat  a  chancre  of  its  nature,  become 
an  adequate  form  of  review  of  equi- 
table remedies,  because  it  brings  up 
only  what  is  properly  recorded,  in 
order  to  assign  error  in  that,  and 
never  brings  up  the  evidence  except 
by  bill  of  exceptions,  which  is  a  form 
not  practiced  in  equity.  It  is  by 
appeal  that  equity  remedies  are  re- 
viewed in  a  higher  court,  and  that 
brings  up  the  whole  case,  and  not 
merely  the  record  of  it"  In  Fouse 
V.  Vandervort,  30  W.  Va.  327,  331, 
the  court  say:  "The  term  'appeal' 
was  unknown  to  the  common  law. 
It  belonged  wholly  to  courts  of  chan- 
cery, and  means  in  its  technical  and 
appropriate  sense  the  removal  of  a 
suit,  and  its  final  determination. 
from  an  inferior  court,  after  final 
judgment  in  that  court,  to  a  supe- 
rior court,  and  placing  the  case  in 
the  latter  court,  to  be  again  tried  de 
novo  upon  its  merits,  just  as  though 
it  had  never  been  tried  in  the  infe- 
rior court."  Barlow  v.  Daniels,  25 
W.  Va.  513.  In  commenting  upon 
this  question  the  court,  in  Styles  v. 
Tyler,  64  Conn.  432,  471,  quoting  from 
a  former  opinion,  say:  "'The  under- 
lying principle  involved  was  that 
the  administration  of  justice  is  not 


safe  when  the  court  of  last  resort  for 
the  settlement  of  the  law,  in  the  ex- 
ercise of  an  absolute  and  final  power, 
can  render  judgment  on  facts  and 
law  so  intermingled  that  its  decision 
is  not  simply  the  declaration  of  the 
law,  but  may  become  the  arbitra- 
tion of  the  case.  .  .  .  The  framers 
of  our  constitution  were  familiar 
with  the  practice  of  English  chan- 
cery, as  well  as  with  that  in  tlie 
courts  of  the  United  States.  A  parly 
aggrieved  by  a  decree  of  the  lord 
chancellor  could  always  appeal  and 
have  his  case  reheard  on  the  same 
evidence  in  the  House  of  Lords.  2 
Madd.  Ch.  435.  In  chancery  only 
were  the  facts  determined  by  the 
court:  and  while  England  was  con- 
tent to  make  the  verdict  of  a  jury 
final,  in  ordinary  cases,  it  refused 
from  the  first  to  accord  similar  re- 
spect to  the  findings  of  any  single 
judge.  The  Judiciary  Act  of  the 
United  States,  adopted  by  congress 
in  1789,  and  which  was  largely  the 
work  of  one  of  the  greatest  lawj'ers 
and  judges  of  Connecticut  (Oliver 
Ellsworth),  followed  in  the  same 
lines,  by  restricting  the  appellate 
jurisdiction  of  the  supreme  court,  in 
actions  at  law,  to  the  remedy  by 
writ  of  error,  while  giving  a  general 
appeal  from  final  decrees  in  equity 
or  admiralty." 


§  359.]  APPEALS.  ^93 

ject  "  1  But  it  is  generally  held  that  a  decree  that  fully  set- 
tles'the  controversy  and  terminates  the  litigation  between  the 
parties  on  the  merits  of  the  case,  leaving  nothing  to  be  done 
but  to  enforce  by  execution  the  determination  of  the  court,  is 

a  final  decree.^  . 

In  Perrin  v.  Lepper^  the  court  held  that  an  order  appoint- 
incr  a  receiver  was  a  final  and  appealable  decree  where  it  takes 
from  the  administrator  the  entire  custody  and  management  of 
the  estate  and  transfers  it  to  another  who  was  a  stranger.  The 
court  say:  "It  would  be  a  serious  reproach  to  the  law  if  a 
litigant  could  be  thus  summarily  divested  of  his  legal  posses- 
sion and  excluded  from  it  pending  what  might  be  a  long  liti- 
gation, with  no  redress  whatever  except  in  future  restoration, 
when  perhaps  it  had  been  demonstrated  that  the  original  ex 
elusion  was  unwarranted." 

Not  only  must  the  decree  be  a  final  decree,  but  it  must  hava 
been  regularly  made  and  entered  so  that  it  becomes  a  record 
in  the  cluse,  for  this,  it  is  said,  is  essential  to  its  completeness 
and  efficiency.*  The  finality  of  the  decree  is  determined  by 
the  fact  of  the  full  and  final  settlement  of  the  matter  in  con- 
troversy ;  but  it  is  no  less  a  final  decree  where  there  are  merely 
ministerial  acts  remaining  to  be  done  which  are  referred  to  a 
commissioner  or  master  in  chancery.  The  decisive  question  is, 
are  there  any  further  questions  or  issues  for  the  future  judg- 
ment of  the  court?*  A  decree  dismissing  the  bill  of  complaint, 
or  an  order  striking  a  bill  from  the  files,  may  be  said  to  be  a 

1  Bostwick  V.  Brinkerhoff,  106  U.  S.  To  make  his  purpose  a  judgment  it 
3  4-  Grant  v.  Phoenix  Ins.  Co.,  106  must  be  entered  of  record,  and  until 
^  g  429,  this  shall  be  done  there  is  nothing 

2  St  Louis,  etc.  R.  Co.  v.  Southern  to  appeal  from." 

Express  Co.,  108  U.  S.  24;  Thomson  SDamouth  v.  Klock,  28  Mich.  163; 

V  Brooke.  76  Va.  160.  Lewis  v.  Campau,  14  Mich.  458;  Bene- 

3  56  Mich.  352.  diet   v.  Thompson,  2   Doug.  (MichO 

4  In  Lo-an  v.  Harris,  90  N.  C.  7,  the  299.  In  Hastie  v.  Aiken,  67  Ala.  313, 
court  say:  "The  entry  of  a  judg-  it  was  held  that  where  the  decree  of 
ment  on  the  record  is  essential  to  its  the  chancellor  settles  all  the  equities 
completeness  and  efficiency.  It  is  between  the  parties  litigant  and 
this  that  gives  It  life  and  certainty,  there  remains  only  a  reference  to  be 
and  perpetuates  it  as  an  established  had  in  order  to  ascertain  their  ratio 
memorial.  It  is  not  sufficient  that  of  interest  in  the  disputed  fund,  the 
the  court  had  taken  its  resolution  as  decree  was  final  and  would  support 
to  what  jud^rnient  it  would  enter,—  an  appeal. 

this  is  only  in  the  mind  of  the  judge. 


^9^  APPEALS.  [§  360. 

final  decree,  or  order,  and  appealable.  And  so  a  decree  grant- 
ing a  divorce  is  held  to  be  final  although  by  the  same  decree  a 
reference  is  ordered  as  to  the  question  of  temporary  alimon}'.^ 

Where  an  assignee  in  bankruptcy  filed  a  bill  to  set  aside,  as 
fraudulent,  conveyances  of  real  estate  of  the  debtor,  made  be- 
fore the  bankruptcy,  and  a  mortgage  put  upon  the  same  by 
the  owner  after  the  sale,  and  praying  to  restrain  the  fore- 
closure of  the  mortgage,  a  decree  denying  the  relief  asked  and 
ordering  any  surplus  which  might  remain  over  and  above  the 
mortgage  debt  after  sale  on  foreclosure,  paid  to  the  complain- 
ant, was  held  to  be  final  and  appealable.  The  court  say:  "  We 
think  this  appeal  was  well  taken.  The  decree  settled  every 
question  in  dispute  between  the  parties,  and  left  nothing  to  be 
done  but  to  complete  the  sale  under  the  proceedings  in  the 
state  court  for  foreclosure,  and  to  hand  over  any  surplus  of 
the  proceeds  there  might  be  after  satisfying  the  debt  due  as 
stated  in  the  process  under  which  the  sale  was  made."  ^  But 
where  the  decree  or  order  is  one  within  the  discretion  of  the 
court  making  it,  or  where  it  is  simply  interlocutory  and  a 
further  determination  of  the  cause  is  to  be  made,  such  orders 
and  decrees  are  not  appealable  except  so  far  as  appeals  there- 
from may  be  allowed  by  statute.' 

§  3G0.  By  whom  talieu. —  An  appeal  can  only  be  taken  by 
parties  who  are  affected  by  the  decree  appealed  from ;  there 
must  be  some  substantial  rights  of  the  parties  to  which  the  ap- 
peal would  be  prejudicial.  An  appeal  will  not  be  allowed  in 
a  mere  fictitious  case,  and  the  court  will  not  entertain  mere 
speculations  of  parties  or  feigned  issues;  and  so  a  merely  fic- 
titious case  to  test  the  rights  of  parties  who  do  any  particular 
thing  will  not  be  entertained  by  the  appellate  courts.*  It  seems 
to  be  a  general  rule  that  all  parties  in  the  suit  who  are  inter- 

1  Webster  v.  Hitchcock,  11  Mich.  111.  219;  Attorney-General  v.  Conti- 
56.  nental  Ins.  Co.,  90  N.  Y.  45.     Orders 

2  Ex  parte  Norton,  108  U.  S.  237,  refusing  to  allow  amendments  not 
243.  In  Fleeuor  v.  Driskili,  97  Ind.  appealable.  Wiggins  v.  McCo}-.  87 
27,  an  order  of  sale  and  partition  was  N.  C.  499;  New  York  Ice  Co.  v.  In- 
held  to  be  final  and  appealable,  su ranee  Co.,  23  N.  Y.  357.  A  motion 
Keepfer  v.  Force,  86  Ind.  81;  Savan-  for  continuance  is  addressed  to  the 
nah  V.  Jesup,  106  U.  S.  563.  sound  discretion  of  the  court  and  is 

3  Griffee  V.  Mann,  63Md.  248;  Eme-  not   appealable  unless   there   is  an 
ric  V.  Alvarado,  64  Cal.  529;  Carper.-  abuse  of  discretion.     Wilson  v.  City 
ter  V.  Reynolds,  58  Wis.  665;  Intor-  of  Wheeling,  19  W.  Va.  323. 
national  et  al.  v.  Jenkins  et  al.,  109  ■*  Where  a  trustee    attempted  to 


§  361.]  APPEALS.  493 

ested  in  the  reversal  of  the  decree  may  be  parties  to  an  appeal 
And  the  rule  in  this  respect  is  somewhat  different  in  case  of 
Joint  parties  in  courts  of  equity  from  the  rule  prevailing  in 
-courts  of  law.  In  the  equity  court  any  party  whose  rights  or 
interests  are  injured  or  prejudiced  by  the  decree  can  claim  an 
appeal,  otherwise  irreparable  injury  might  be  inflicted  by  an 
erroneous  decree  and  for  which  he  would  have  no  redress,  for 
the  decree  may  affect  one  of  the  parties  injuriously  and  erro- 
neously, while  as  to  other  parties  it  may  be  entirely  right  and 
•satisfactory. 

In  the  case  of  Todd  v.  Daniel^  the  court  say:  "The  proper 
rule  in  cases  of  this  sort,  where  there  are  various  defendants, 
seems  to  be  that  all  the  defendants  affected  by  a  joint  decree 
(although  it  may  be  otherwise  where  the  defendants  have  sep- 
arate and  distinct  interests,  and  the  decree  is  several  and  does 
not  jointly  affect  all)  should  be  joined  in  the  appeal;  and  if 
any  of  them  refuse  or  decline  upon  notice  and  process  (in  the 
nature  of  a  summons  and  severance  in  a  writ  of  error)  to  be 
issued  in  the  court  below,  to  become  parties  to  the  appeal,  then 
that  the  other  defendants  should  be  at  liberty  to  prosecute  the 
appeal  for  themselves  and  upon  their  own  account;  and  the 
appeal  as  to  the  others  be  pronounced  to  be  deserted,  and  the 
decree  of  the  court  below  as  to  them  be  proceeded  in  and  exe- 
cuted." The  procedure,  however,  in  this  respect  has  under- 
gone some  changes  and  has  been  modified  more  or  less  by 
statutes  and  rules  of  court,  but  the  right  of  a  parley  who  con- 
sidered himself  aggrieved  or  injured  by  the  decree  in  this  re- 
spect has  not  been  limited,  but  enlarged,  so  that  a  party  can- 
not be  deprived  of  his  privilege  to  have  the  case  reheard  by 
the  appellate  court  by  the  mere  refusal  of  those  who  are  joint 
parties  with  him. 

§  361.  The  procedure  in  obtaining  and  perfecting  an  ap- 
peal.—  The  object  of  an  appeal  is  to  obtain  a  rehearing  and 
'determination  of  the  cause  in  the  appellate  court  upon  the 

-settle  the  rights  of  parties  to  certain  and  pass  upon  the  construction  of 

property  under  a  will  by  means  of  the   will.     Lincoln   v.    Aldrich,    141 

filing  a  fictitious  account  in  tiie  pro-  Mass.  342,  5  N.  E.  517;  Fletcher  v. 

bate  court,  from  the  allowance  of  Peck,  10  U.  S.  (6  Cranch),  87;  Blake 

■which  an  appeal  was  taken  to  the  v.  Askew,  76  N.  C.  325. 
supreme  court,  the  appellate  court        1 16  Pet.  (U.  S.)  521,  523. 
»«fused  to  take  notice  of  the  appeal 


496  APPEALS.  [§  361. 

same  pleadings  and  proofs  which  were  presented  to  and  con- 
sidered by  the  court  that  rendered  the  decree.  The  procedure, 
however,  must  be  such  as  will  present  the  same  case  to  the  su- 
perior court  for  its  consideration  that  was  heard  by  the  in- 
ferior court.  The  hearing  of  the  appeal  is  said  to  be  a  trial  of 
the  cause  de  novo,  but  upon  the  same  proofs  and  the  same 
pleadings  upon  which  the  court  below  rendered  its  decree. 
There  can  be  no  change  in  the  pleadings,  nor  can  there  be  any 
other  proof  taken  or  presented  to  the  appellate  court.  The 
procedure  or  manner  of  removing  the  cause  from  the  lower 
court  differs  in  different  jurisdictions.  In  the  United  States 
court  the  proofs  are  taken  by  commissioners  or  masters  in 
chancery  and  certified  to  the  court  which  is  to  hear  the  cause, 
and  in  an  appeal  from  these  courts  a  transcript  of  the  record 
that  is  sent  to  the  appellate  court  for  hearing  includes  the 
pleadings  and  proofs  which  are  presented  to  the  lower  court. 
In  many  of  the  state  courts  the  proofs  upon  the  allowance  of 
an  appeal  and  proper  notice  are  settled  by  the  judge  or  chan- 
cellor who  tried  the  cause,  in  which  case  much  of  the  imma- 
terial matter  contained  in  the  trial  is  eliminated.  But,  as  a 
general  rule  in  all  jurisdictions,  a  certificate  of  the  court  must 
be  added  to  the  record  that  it  contains  all  the  proofs  upon 
which  the  case  was  tried  and  determined. 

When  the  case  is  settled  it  becomes  a  part  of  the  record  and 
is  transmitted  to  the  appellate  court  to  be  used  upon  the  ap- 
peal. And  so  when  the  cause  comes  on  to  be  heard  in  the 
appellate  court  it  is  tried  and  detorniinod  upon  the  same  proofs 
and  the  same  record  that  was  before  the  lower  court,  and  the 
appellate  court  determines  the  questions  of  fact  involved  as 
well  as  the  questions  of  law.'  An  appeal  of  the  cause  has  the 
effect  to  deprive  the  lower  court  of  any  jurisdiction  over  the 
subject-matter  and  issues  between  the  appellant  and  the  ap 
pellee;  and  so  it  has  been  held  that  a  motion  to  dismiss  a  cause 
after  an  appeal  has  been  taken  must  be  made  in  the  appellate 
court  and  not  in  the  trial  court. 

1  In  State  v.  Orwig.  27  Iowa,  528,  the  merits.     We  are  clearly  of  the 

.530,  the  court  say:  "The  question  is  opinion  that,  upon  such  an  appeal, 

whether,  when  a  final  decree  is  ap-  the  trial  must  be  de  novo  upon  the 

pealed  from,  the  case  may  be  tried  merits."    Reese   v.    Barker,   85   Ala. 

upon  alleged  errors  in  interlocutory  475;  Larison  v.  Polhemus,  o9  N.  3. 

proceedings,  and  not  de  novo  upon  Eq.  303,  306. 


§  362.]  APPEALS.  ^07 

In  Railway  Co.  v.  Chamhers'-  the  court  say :  "  The  respondent 
had  no  jurisdiction  to  dismiss  the  appeal.  The  effect  of  filing 
the  claim  for  appeal,  and  the  bond,  was  to  transfer  the  cause 
to  this  court,  and  the  motion  to  dismiss  should  have  been  made 
here.  Such  appears  to  be  the  uniform  practice."  And  so  it 
has  been  held  that  an  entry  of  an  order  dismissing  the  cause 
in  the  trial  court  after  an  appeal  was  taken  was  a  nullity .^ 

§  3G2.  Dismissal  of  the  appeal.— If  the  appeal  is  irregular 
and  does  not  comply  with  the  requirements  of  the  practice  for 
taking  and  perfecting  it,  the  appellee  may,  on  motion,  have  the 
appeal  dismissed;  or  the  appellate  court  may  on  its  own  motion 
dismiss  the  appeal  where  it  appears  that  it  has  no  jurisdiction,* 
or  that  the  appellant  has  no  right  to  appeal. 

Among  the  reasons- for  dismissing  an  appeal  are  the  follow- 
ing: For  lack  of  prosecution ;  for  want  of  jurisdiction;  for  failure 
to  present  a  record  of  the  proceedings  in  the  court  below;  for 
want  of  actual  controversy,  or  for  irregularities  in  settling  the 
case  or  obtaining  the  record  of  the  lower  court. 

The  jurisdiction  of  the  appellate  court  may  depend  upon  the 
nature  of  the  cause  appealed  or  the  regularity  of  the  proceed- 
ings in  appealing  the  cause.  If  the  cause  be  of  such  a  nature 
that  the  appellate  court  has  by  law  no  jurisdiction  over  its  sub- 
ject-matter,— as  where  an  appeal  is  taken  from  a  non-appeal- 
able judgment,  decree  or  order,—  the  appeal  would  be  void,* 

189  Mich,  5,  7.  104  N.  C.  330,  where  it  appeared  that 

2  Freeman    v.   Henderson,  5  Cold,  the  appellant  failed  for  two  terms  to 

(Tenn.)  617;   Stewart  v.   Taylor,   68  prosecute  his  appeal,  it  was  held  suf- 

Q^\  5,  ticient  ground    to   dismiss  it.     And 

3In  Bienenfeld  v.  Fresno  Milling  whenthesupremecourtoftheUnited 

Co.,  82  Cal.  425,  426,  the  court  dis-  States  determines  that  it  is  unneces- 

missed  the  appeal  on  its  own  motion  sary  to  decide  any  federal  question, 

and  in  its  opinion  said:  "  Not  having  and  it  appears  that  the  state  court 

jurisdiction  of  the  appeal,  we  must  based  its  decision  on  a  local  question, 

dismiss  it.     The  only  embarrassment  the  appeal  will  be  dismissed  on  proper 

we  experience  in  arriving  at  this  de-  application.     Eustis    v.    Bolles,    150 

termination  is  caused  by  the  omis-  U.  S.  361;  Winter  v.  Montgomery,  156 

sion  of  respondent  to  raise  the  point;  U.  S.  385;  Wilcox  v.  Wilcox,  63  Vt. 

but  we  cannot  proceed  further  in  a  137,  21   Atl.  423;   Hart  v.  Burch,  130 

case  after  discovering  that  we  have  111.  426,  22  N.  E.  831. 

no  jurisdiction,  whether  the  point  is  *  United   States    Sav.   etc.    Co.    v. 

raised  by  counsel  or  not."     Banking  Ahrens,   50    Minn.    332;    Clayton  v. 

Ass'n  V.   Insurance  Ass'n,  102  U.  S.  Mitchell,  33  S.  C.  599. 
121.     In  Wiseman  v.  Commissioners, 


49 S  APPEALS.  [§  362. 

and  could  not  be  considered,  even  by  consent  of  the  parties,  for 
jurisdiction  cannot  be  conferred  by  consent.  But  if  the  appeal 
has  been  regularly  taken,  and  the  question  brought  up  is  one 
within  the  jurisdiction  of  the  appellate  court,  then  it  has  been 
held  that  that  court  has  no  power  to  dismiss  the  appeal,  for  the 
jurisdiction  of  the  court  is  established  by  law  for  the  benefit 
of  the  appellant,  and  it  is  beyond  the  authority  of  the  court  to 
deprive  him  of  a  determination  of  his  cause  in  that  court.^  But 
if  the  irregularity  in  perfecting  the  appeal  is  entirely  due  to 
the  fault  or  neglect  of  the  officials  of  the  court,  the  appeal 
will  not  be  dismissed.  As  where  it  appeared  that  the  clerk  of 
the  court  withheld  the  transcript  on  appeal,  and  it  was  entirely 
because  of  his  neglect  that  it  was  not  seasonably  transmitted  to 
the  appellate  court,  the  court  refused  to  dismiss  the  appeal.^ 

Failure  to  prosecute  the  appeal  is  good  ground  for  its  dis- 
missal. As  where  the  appellant  fails  to  appear  when  the  case 
is  called  for  argument  in  the  appellate  court,  and  where  an  un- 
usual length  of  time  has  elapsed  and  it  can  reasonably  hv  pre- 
sumed that  the  appeal  has  been  abandoned  ;  or  where  a  greater 
time  has  elapsed  than  is  allowed  by  the  rules  of  court,  and  the 
case  has  not  been  brought  on  for  argument,  the  appeal  may  be 
dismissed.  And  so  where  there  has  ceased  to  be  any  contro- 
versy between  the  parties  as  to  the  subject-matter  of  the  suit 
appealed  —  as  w^here  one  party  has  sold  out  to  the  other,  w^ho 
is  prosecuting  it  for  his  own  benefit, —  in  such  case  the  court 
may  on  its  own  motion  dismiss  the  suit.'  Or  where  it  appears 
that  there  is  no  real  dispute,  but  that  the  submission  is  made 
for  the  simple  purpose  of  ascertaining  the  law,  the  appeal  will 
be  dismissed.* 

It  is  generally  held  that  appellate  courts  possess  authority 
to  make  necessary  rules  for  the  transaction  of  business  and  to 
regulate  procedure  on  appeals,  and  that  the  power  to  make 
such  rules  carries  with  it  the  power  to  enforce  them,  even  by 
the  penalty  of  dismissal  for  non-compliance.* 

1  Carlson  v.  Superior  Court,  70  Cal.  *  Berks  Ca  v.  Jones,  31  Pa.  St  (9 

630.  Bar.)  413. 

2 The  Palmyra,  12  Wheat.  (U.  S.)  10.  ^  Coffey  v.  Dubois,  35  Mo.  App.  96; 

3  East  Tenn.  etc  Co.  v.  Southern,  Geraty  v.  Druiding,  44  III.  App.  440. 

etc.    Co.,    125  U.  S.   695;    American  Appeal  dismissed  for  failure  to  file 

Freehold,  etc  Co.  v.  Williams,  47  La.  an  abstract    as    required    by    rula 

Ann.  13-SO.  Where  an  appellant  fails  to  file  brief 


§§  363,  364.]  APPEALS.  ^^^ 

§  363.  Notice  of  motion  to  dismiss  appeal.— Due  notice  to 
the  adverse  party  of  the  motion  to  dismiss  an  appeal  must 
be  given,  and  be  in  compliance  with  the  rules  and  practice 
of  the  court.  The  notice  must  specify  the  time  when  it  will 
be  heard,  and  proof  of  service  of  the  motion  should  be  filed 
with  the  court.  The  motion  must  specify  with  particularity 
the  ground  relied  upon  for  dismissing  the  appeal,  otherwise  it 
will  be  overruled.!  And  so  where  the  motion  contained  sim- 
ply an  unverified  charge  that  the  transcript  was  defective  by 
fraud  of  the  appellant,  it  was  held  that  a  dismissal  of  the 
appeal  would  not  be  justified.^  And  a  motion  to  dismiss  an 
appeal  where  the  only  reason  assigned  is  that  the  court  has  no 
jurisdiction  to  hear  and  determine  it  will  not  be  entertained.' 

The  grounds  relied  upon  for  making  a  motion  must  be  stated 
with  reasonable  particularity  and  certainty,  and  must  be  suffi- 
ciently specific  to  give  to  the  opposite  party  and  the  court  a 
clear  understanding  of  them.  So  clear  and  specific  should 
the  statement  of  the  reasons  be,  that  the  court  could  make 
its  order  without  further  amendment  or  explanation  of  the 
motion,  and  the  opposite  party  meet  and  answer  the  allega- 
tions and  reasons  contained  in  it,  if  he  has  any  defense  to 

make. 

§  364.  The  hearing.— The  cause  is  heard  in  the  appellate 
court  upon  the  same  pleadings  and  proofs  which  were  submitted 
to  the  lower  court.  As  we  have  seen,  a  transcript  of  the  record, 
including  the  pleadings  and  the  proofs  in  the  cause,  is  trans- 
mitted to  the  appellate  court.  But  the  court  usually,  by  rule, 
provides  that  the  pleadings  and  proofs  should  be  printed  so 
that  each  of  the  judges  of  the  court,  the  solicitors  upon  the 
opposite  side  and  the  reporters  may  have  a  copy  of  the  whole 

case. 

Counsel  for  the  respective  parties  are  also  by  rule  required 
to  make  and  submit  for  the  hearing  a  printed  brief  and  argu- 
ment, containing  the  claims  made  by  counsel  and  the  author- 
in  support  of  his  assignments  of  is  not  sufficient.  De  La  Cuesta  v. 
error  the  appeal  was  dismissed.  Car-  Calkins,  113  Cal.  296,  41  Pac.  109a 
rigerv.  Kennedy,  134  Ind.  107;  Rum-  sScholfield  v.  Pope,  103  111.  138; 
felt  V.  Canal,  etc.  Co.,  83  Cal.  649.  Garrett  v.  Kansas  City  Coal  Co.,  Ill 

1  Scholfield  V.  Pope,  103  111.  138.  Mo.  279,  20  S.  W.  25;  Archer  v.  Long. 

2Edson  V.  McGraw,   37  La.   Ann.     35  S.  C.  585.  14  S.  K  24;    Healy  v. 
294.     A  motion  which  is  uncerUin    Seward,  5  Wash.  319,  31  Pac.  874. 


500  APPEALS.  [§  365. 

ities  upon  which  they  depend,  a  copy  of  which  is  furnished 
the  judges  and  officers  of  the  court  and  the  opposite  solicitor. 
Upon  this  printed  record,  and  the  briefs  and  arguments  of  so- 
licitors, the  cause  is  heard  by  the  appellate  court.  No  other 
proof  is  submitted  upon  the  hearing  than  that  in  the  transcript 
of  the  record  of  the  court  below.^ 

The  practice  as  to  preparations  for  the  hearing,  the  manner 
of  submitting  the  cause  and  the  procedure  in  general  in  the 
appellate  court  is  fixed  by  rules  of  practice  in  the  particular 
jurisdiction. 

§  365.  The  decision  and  decree  of  the  court. —  The  cause  be- 
ing submitted,  the  appellate  court  will  render  its  opinion  and 
order  a  decree  in  the  cause.  This  decree  may  entirely  dispose 
of  the  case,  overruling  or  affirming  the  decree  of  the  court  be- 
low, or  modifying  it  and  directing  some  further  proceeding 
by  way  of  carrying  out  its  orders.^  The  appellate  court,  as 
has  already  been  said,  considers  the  facts  involved  in  the  case 
as  well  as  the  law,  but  as  to  questions  of  fact  the  appellate 
courts  are  generally  inclined  to  give  weight  to  the  findings  of 
the  trial  court  where  that  court  had  the  party  and  witnesses 
before  it,  and  it  is  said  that  "  that  deference  will,  in  doubtful 
cases,  turn  the  scale."  But  where  the  court  is  satisfied  that 
the  trial  court  erred  in  its  findings  of  facts,  the  court  will  de- 
cide for  itself.' 

iln   Kerslake    v.   Cummings,    180  was  affirmed.    People  v  Barber,  134 

Mas&  65,  61  N.  E.  760.  where  the  case  Cal.  six,  66  Pac.  725. 

in  the  court  below  was  heard  upon  ^Drosten  v.  Mueller,  103  Mo.  625. 

an  agreed  statement  of  facts  which  In  Royle  v.  Jones.  78  Mo.  403,  where 

were  referred   to,  and   on  evidence  the  facts  were  found   by  jury,  and 

which  it  sets  forth,  the  court  lield  afterwards   the   court    reached   the 

that    an    objection    that    the    only  same  determination,  having  had  the 

question  is  whether  the  decree  fol-  witnesses    before   it,    the    appellate 

lows  the  frame  of  the  bill  was  un-  court  held  that  the  findings  should 

tenable.       Jones     v.    Cleary    (Neb.,  not  be  overturned  except  for  more 

1902),  89  N.  W.  386.  urgent  reasons  than  that  which  had 

2  Brownell  Co.  v.  Critchfield,  96  111.  been  reached.    Stebbins  v.  Timm,  96 

App.  84,  64  N.  R  883.     And  where  Mich.  55;  Darling  v.  Jewell,  96  Mich, 

the  appellant  did  not  file  a  brief  on  187;    Coon   v.    Cronk,    181    Ind.    44, 

appeal  and  made  no  appearance  at  Thallmann    v.   Thomas,  49  C.  C.  A. 

the  calling  of  the  case,  the  judgment  317,  111   Fed.  277;  Harding  v.  Hart, 

113  Fed.  304. 


CHAPTER  XVIII. 

REMEDIES  IN  EQUITY. 

§  366.  The  object  of  the  chapter. 

367.  Classification  of  equitable  remedies, 

368.  Statutory  actions. 

§  366.  The  object  of  the  chapter.— Thus  far  we  have  con- 
sidered briefly  the  jurisdiction  and  powers  of  the  court  of  equity, 
the  pleadings  and  the  procedure  of  an  ordinary  equity  case. 
We  now  call  attention  to  equitable  remedies  and  notice  the 
pleadings  and  procedure  applicable  to  them.  It  would  be  a 
difficult  and  interminable  task  to  discuss  all  the  actions  and 
proceedings  in  detail  of  which  the  court  of  equity  will  take 
cognizance,  and  so  we  confine  our  discussion  to  those  actions 
and  proceedings  which  are  usual  and  more  generally  invoked. 

§  367.  Classification  of  equitable  remedies. —  Equitable 
remedies  may  be  classified  or  arranged  under  five  general  heads 
or  classes  according  to  the  well  known  objects  and  purposes 
of  each  of  the  actions  and  remedies  named. 

Fii'st.  Remedies  not  seeking  relief,  but  which  are  in  their  na- 
ture and  purpose  administrative  and  protective;  administrative 
b}"^  way  of  assisting  the  court  m  carrying  out  its  orders  and  de- 
crees, and  protective  in  the  sense  of  preserving  to  the  parties 
their  rightful  and  legal  mterests  in  the  subject  of  the  litigation. 
Under  this  may  be  classified  actions  of  interpleader  and  ac- 
tions or  proceedings  for  the  appointment  of  a  receiver. 

Second.  Remedies  which  are  mandatory,  prohibitory  and 
protective.  Under  this  head  may  be  found  injunctions,  which  are 
mandatory,  directing  the  performance  of  a  specified  act;  pro- 
hibitory and  protective,  in  that  they  prohibit  the  performance 
of  certain  acts  and  protect  the  plaintiff  from  threatened  wrong 
or  injury. 

Third.  Remedies  seeking  relief  by  establishing  primary 
rights,  interests  or  estates,  whether  legal  or  equitable.  In  this 
class  may  be  grouped  actions  for  assignment  of  dower;  for 


602 


EEMEDIES    IN    EQUITY, 


[§  367. 


partition  of  propert}'',  and  those  actions  which  in  their  nature 
are  auxiliary  in  that  they  so  settle  the  rights  of  the  parties 
that  their  legal  status  may  be  determined,  as,  for  example,  ac- 
tions for  reformation  and  re-execution ;  for  cancellation,  sur- 
render or  discharge  of  instruments. 

Fourth.  Remedies  for  the  enforcement  of  obligations.  As, 
for  example,  actions  for  the  specific  performance  of  contracts; 
for  the  declaration  and  enforcement  of  trusts,  and  obligations 
arising  from  fiduciar3'^  relations;  for  contribution;  for  subro- 
gation, or  exoneration;  for  dissolution  of  partnerships;  for  an 
accounting,  and  those  actions  where  incidentally  and  for  a  more 
complete  remedy  damages  may  be  awarded. 

Fifth.  Kemedies  for  the  enforcement  of  liens,  or  subjecting 
certain  specific  property  to  the  payment  of  obligations.  In 
this  class  may  be  found  actions  for  the  foreclosure  of  mortgages 
or  pledges,  and  incidental  thereto  the  right  of  redemption  and 
bills  to  redeem;  for  marshaling  of  securities;  for  enforcing 
equitable  liens;  creditors'  bills  and  bills  in  aid  of  execution.^ 


1  In  order  to  classify  and  analyze 
equity  actions  and  more  clearly  dis- 
cover their  nature  and  proper  use, 
the  grouping  of  actions  adopted  by 
Mr.  Pomeroy  in  his  work  on  Equity 
Jurisprudence  has  to  some  extent 
been  followed.  Mr.  Pomeroy  ar- 
ranges equity  actions  into  eight  sep- 
arate groups  as  follows:  "(1)  The 
first  group  contains  those  remedies 
which  are  purely  ancillary  and  pro- 
visional, which  do  not  affect  any 
primary  right  nor  confer  any  ulti- 
mate relief.  (2)  The  second  group 
consists  of  remedies  purely  prevent- 
ive. (3)  The  third  group  consists  of 
remedies  which  indirectly  establish 
or  protect  interests  and  primary 
rights,  whether  those  interests  and 
rights  are  legal  or  equitable.  (4)  The 
fourth  group  consists  of  remedies  by 
which  estates,  interests,  and  primary 
rights,  either  legal  or  equitable,  are 
directly  declared,  established  or  re- 
covered, or  the  enjoyment  thereof 


is  fully  restored.  (5)  The  fifth  group 
consists  of  remedies  by  which  equi- 
table obligations  are  specifically  and 
directly  enforced.  (6)  The  sixth 
group  consists  of  remedies  in  which 
the  final  relief  is  pecuniary,  but  is 
obtained  by  the  enforcement  of  a 
lien  or  charge  upon  some  specific 
property  or  fund.  (7)  The  seventh 
group  consists  of  remedies  in  which 
the  final  relief  is  wholly  pecuniary, 
and  is  obtained  in  the  form  of  a 
general  pecuniary  recovery.  (8)  The 
eighth  group  contains  certain  addi- 
tional remedies  which  have  been 
created  and  conferred  by  statute  in 
several  of  the  states,  and  which 
therefore  do  not  belong  to  the  orig- 
inal jurisprudence  of  equity  nor  to 
the  general  equitable  jurisdiction." 
3  Pomeroy,  Eq.  Jur.,sec.  1316.  Judge 
Story  has  classified  equity  actions, 
following  somewhat  Mitford  and 
Cooper.     Story,  Eq.  PI.,  §§  19,  20,  21. 


§  368.]  REMEDIES   IN   EQUITY.  503 

§  368.  statutory  actions. —  There  are  many  statutory  ac- 
tions which  cannot  be  classified  with  the  original  equitable 
remedies,  as  they  are  not  founded  upon  equitable  jurisdiction, 
but  have  their  origin,  and  rely  for  their  jurisdiction  and  pro- 
cedure, upon  statutory  enactments.  Among  these  are  suits  for 
divorce;  for  separate  maintenance;  to  dissolve  and  wind  up 
the  affairs  of  a  corporation ;  to  remove  corporate  officers  for 
fraud  and  misconduct  in  their  corporate  office  and  direct  the 
filling  of  the  vacanc}'^  on  account  of  such  removal ;  for  fixing 
liability  upon  stockholders  for  the  payment  of  certain  debts  or 
obligations  of  the  corporation,  as  for  materials  and  labor  under 
certain  circumstances;  for  the  enforcement  of  mechanics' liens, 
and  many  other  remedies  that  might  be  mentioned.  These 
statutory  remedies  are  equitable  rather  than  legal  in  their  nat- 
ure, because  the  law  court  could  not  by  its  narrow  and  fixed 
jurisdiction  and  procedure  furnish  the  necessary  relief;  while 
equity,  because  of  its  broad  and  flexible  powers,  can  more  fully 
determine  and  administer  the  rights  and  interests  involved. 


CHAPTEH  XIX. 

REMEDIES  SEEKING  RELIEF,  BUT  WHICH  ARE  IN  THEIR  NAT- 
URE  AND  PURPOSE  ADMINISTRATIVE  AND  PROTECTIVK 


Section  I.  Interpleader. 

g  369.  The  nature  and  object  of  the 
action. 

370.  The  complainant  a  mere  stake- 

holder, having  no  interest  in 
the  matter  in  controversy. 

371.  Seeming  exceptions. 

372.  As  to  title  of  claimants  to  the 

property.obligatiou  or  thing 
in  controversy. 

373.  The  real  office  of  interpleader. 

374.  Injunction  to  protect  plaintiff 

from  a  multiplicity  of  suits. 

375.  Plaintiff    should   tender   per- 

formance of  the  duty  or  ob- 
ligation or  secure  it. 

376.  The  parties  to  the  bill  of  inter- 

pleader. 

377.  The  bill  of  complaint 
37a  The  prayer. 

379.  Verification. 

380.  Defenses    to    bills    of    inter- 

pleader. 

381.  The  replication. 

383.  The  hearing  and  decree. 


Section  IL  Receivers. 

383.  Receivers  —  Nature  and  office 

of.  in  equity  suits. 

384.  Definition  and  some  requisites. 

385.  Jurisdiction  to  appoint 
886.  Must  be  in  pending  suit 

387.  In  what  cases  appointed. 

388.  Some  special  cases. 

389.  Receivers  over  real  property. 

390.  The  application   for  appoint- 

ment. 

391.  The  order  on  application  for 

appointment. 

392.  The  title  or  right  of  possession 

and  control  of  the  receiver. 
398.  The  New  York  rule. 

394.  Something  of  the  powers,  du- 

ties and  obligations  of  the 
receiver. 

395.  Foreign     and     ancillary     re- 

ceivers. 

396.  Interference  with  receivers  — 

Contempt  of  court 

397.  Procedure  in  cases  for  con- 

tempt 


Section  I.  Interpleader. 

§  369.  The  nature  and  object  of  the  action. —  Where  two 
or  more  persons,  by  different  or  separate  interests,  claim  from 
another  the  same  thing,  duty  or  obligation,  and  the  person 
from  whom  the  claim  is  made  does  not  know  to  which  of  the 
claimants  he  ought  of  right  to  deliver  the  thing,  or  render  the 
duty  or  obligation,  and  fears  because  of  their  conflicting  de- 
mands he  may  suffer  injury,  he  may  file  a  bill  of  interpleader 
and  compel  the  different  claimants  to  interplead  and  present 
their  several  claims  for  the  adjudication  of  the  court. 


INTEKP  LEADER. 


505 


§  370.] 

In  Ireland  v.  Kelly^  the  court  say:  "The  essential  incident 
of  the  equity  which  justifies  an  interpleader  is  that  the  com- 
plainant, so  far  as  his  own  acts  are  concerned,  is  under  but  a 
single  liability  to  pay  or  deliver  the  fund  or  thing  in  dispute, 
and  yet  he  is  called  upon  to  pay  or  deliver  to  two  or  more  con- 
testing claimants.  The  complainant  in  such  cases  having  no 
interest  in  the  fund  or  thing  in  dispute,  it  is  inequitable  that 
he  should  be  compelled  to  take  the  risk  of  determining  which 
of  the  conflicting  claims  is  superior."  This  condition  of  dis- 
puting claims  upon  the  same  fund  may  arise  from  so  many 
causes  that  it  is  difficult  to  define  any  limitation  which  must 
deprive  the  holder  of  the  fund  of  his  right  to  be  protected." 

It  has  been  said,  and  is  no  doubt  the  rule,  that  it  is  not  nec- 
essary that  the  party  should  decide  at  his  peril  either  close 
questions  of  fact  or  nice  questions  of  law,  but  it  is  sufficient  if 
there  is  a  reasonable  doubt  as  to  whom  the  debt  belongs.^ 

§  370.  The  complainant  a  mere  stakeholder,  having  no  in- 
terest in  the  matter  in  controversy.— The  plaintifif  should 
have  no  interest  in  the  matter  in  controversy;  he  must  be  a 


1 60  N.  J.  Eq.  308,  312,  47  Atl.  51. 
lathis  case  the  court  further  say: 
"The  fact  that  one  party  claims  be- 
cause of  an  admitted  contract  with 
the    holder    of  the    fund,   and   the 
other  by  some  claimed  arrangement 
with  the  admitted  contractor,  will 
not  exclude  the  holder  of  the  fund 
from  his  right  to  be  protected.     All 
claims  arising   under  equitable  as- 
signments    are    within    this    class. 
Those  arising  under  building  con- 
tracts are  quite  familiar.     In  these 
cases  the  owner  (the  holder  of  the 
fund)    only    contracts    to    pay   the 
builder  who  claims  payment     But 
perhaps  half  a  dozen  other  persons 
assert    claims    on    the    same    fund 
upon  what  they  contend  are  equi- 
table assignments  from  the  builder, 
or  other  rights  against  him,  in  the 
creation  of  which  the  holder  of  the 
fund   has  no   part.     It   is    common 
practice  in  such  cases  for  the  owner 
to  pay  the  money  into  court  and  file 
a  bill   for    interpleader    to    compel 


those  who  make  these  conflicting 
claims  on  the  fund  to  settle  their 
disputes  between  themselves.  Those 
cases,  many  of  them,  do  not  set  up 
any  contractual  relation  between 
the  disputants  and  the  holder  of  the 
fund,  except  as  may  have  arisen  by 
operation  of  law  because  of  some  act 
of  the  builder  or  of  the  claimants 
themselves."  Packard  v.  Stevens,  58 
N.  J.  Eq.  489,  46  Atl.  250;  American 
Press  Ass'n  v.  Brantingham,  68  N. 
Y,  S.  285. 

2  Merchant  et  aL  v.  Insurance  Co., 
68  N.  Y.  S.  406.  Perkins  v.  Mont- 
gomery, 70  N.  Y.  S.  136.  held  that  it 
is  insutficient  to  sustain  a  bill  of  in- 
terpleader that  rival  claims  have 
been  made  for  the  fund.  There  must 
be  a  further  showing  that  a  bona  fide 
controversy  existed  between  the  ri  val 
claims.  To  support  a  bill  of  inter- 
pleader it  must  show  that  there  are 
two  or  more  persons  making  the 
same  claim  against  the  complainant. 
Brackett  v.  Graves,  51  N.  Y.  S.  895. 


506  INTERPLEADEB.  [§  370. 

mere  stakeholder,  standing  entirely  indifferent  as  to  the  con- 
flict between  the  claimants,  and  being  ready  and  willing  at  all 
times  to  surrender  the  entire  matter  in  dispute;  to  pay  the 
debt;  to  render  the  duty  or  perform  the  obligation.  Nor  can 
he  in  any  way  mingle  a  demand  of  his  own  with  the  demands 
of  the  claimants;  he  must  be  in  such  a  position  that  when  the 
decree  is  made  that  the  claimants  interplead,  he  will  be  entirely 
without  the  controversy,  llis  position  must  be  one  of  con- 
tinued disinterestedness  and  impartiality.'  The  amount  due 
from  the  plaintiff  cannot  be  a  matter  of  controversy  between 
plaintiff  and  claimants.  The  property  or  subject-matter  of  the 
interpleader  must  be  definite  and  certain  in  character.  And 
where  in  the  proceedings  it  was  disclosed  that  there  was  a  con- 
test between  the  plaintiff  and  tiefendants  as  to  the  amount  of 
the  debt,  it  was  held  that  the  bill  could  not  be  maintained.' 
It  is  also  essential  that  the  party  seeking  relief  has  incurred 
no  independent  liability  to  either  claimant,  and  that  he  claims 
no  interest  whatever  in  the  matter.' 

In  Williams  v.  Mattheivs^  it  was  said:  "To  sustain  such  a 
bill  it  is  necessary  that  the  complainant  have  no  interest  in 
the  thing  in  controversy,  and  he  should,  in  his  bill,  state  hir 
own  rights  so  as  to  negative  any  such  interest."  The  court 
further  held  that  the  bill  should  allege  sufficient  facts  to  dem- 
onstrate to  th(>  court  that  there  wasa  certain  amountdue  with 
reference  to  which  the  complainant  was  simply  a  stakeholder, 
and  that  if  it  appears  upon  the  face  of  the  bill  that  it  is  not  a 
proper  case  for  interpleader  a  demurrer  will  lie. 

In  Wakeman  v.  Kingsland^  some  of  the  defendants,  beside 
answering  the  bill  of  complaint,  filed  cross-bills  asking  for  af- 
firmative relief.  The  complainant  moved  to  strike  out  the 
cross-bills  on  the  ground  that  in  a  strict  interpleader  suit  no 
such  defense  could  be  made,  and  the  reasons  assigned  were 
that  such  suit  could  not  be  maintained  unless  it  was  shown 

1  Wing  V.  Spaulding,  64  Vt.  83.  Ebbinghaus,  110  U.  S.   568;  Partlow 

2  Mitchell  V.  Hayne,  2  Sim.  &  S.63;  v.  Moore,  184  111.  119;  Ladd  v.  Chase, 
Bridesburg   Mfg.    Co.'s   Appeal,  106     155  Mass.  417. 

Pa.  St  276;  Crass  v.  Memphis,  etc.  3  Sprague   v.   Soule,   35   Mich.   85; 

Ry.  Co.,  96  Ala.   447;  New  England,  Richardson   v.    Belt,   13  App.   D.   G 

etc.  Mfg.  Ca  v.  Odell,  50  Hun  (N.  Y.),  l&T. 

279;  Du    Bois  v.   Union  Dime    Sav.  *  47  N.  J.  Eq.  196,  19a 

Inst,  89  Hun  (N.  Y.),  382;  Killian  t.  6  46  N.  J.  Eq.  113,  Ua 


§  371.]  INTEKPLEAUEK.  507 

that  the  complainant  stood  in  a  position  of  perfect  neutrality 
towards  all  the  defendants;  that  the  complainant  must  occupy 
the  position  of  an  indifferent  stakeholder,  and  if  it  were  made 
to  appear  that  he  is  under  any  personal  obligation  to  one  of 
the  defendants  in  respect  to  the  subject-matter  of  the  suit,  the 
bill  as  to  that  defendant  would  be  dismissed.  As  to  this  the 
court  said:  "That  this  view  is  correct  would  seem,  from  the 
nature  of  the  remedy  and  the  character  of  the  proceeding,  to 
be  undeniable.  A  strict  interpleader  bill  can  only  be  exhib- 
ited where  two  or  more  persons  claimed  the  same  debt,  duty 
or  other  thing  from  the  plaintiff  by  different  or  separate  inter- 
ests; and  he,  not  knowing  to  which  of  the  claimants  he  ought 
of  right  to  render  the  debt,  duty  or  other  thing,  fears  that  he 
may  suffer  injury  from  their  conflicting  claims,  and  therefore 
he  prays  that  they  may  be  compelled  to  interplead  and  state 
their  several  claims  so  that  the  court  may  adjudge  to  whom 
the  debt,  duty  or  other  thing  belongs." 

It  was  said  by  Lord  Cottenham,  in  Hoggart  v.  Cutts,^  in  dis- 
cussing interpleader:  "It  is  where  the  plaintiff  says  I  have  a 
fund  in  my  possession  in  which  I  claim  no  personal  interest 
and  to  which  you,  the  defendants,  set  up  conflicting  claims; 
pay  me  my  costs  and  I  will  bring  the  fund  into  court,  and  you 
shall  contest  it  between  yourselves."  And  so  it  is  that  the 
case  must  be  one  in  which  the  subject-matter  is  a  contest  be- 
tween two  parties  or  more,  and  which  the  litigation  between 
the  parties  will  decide  their  respective  rights.  But  the  plaint- 
iff must  not  favor  either  party  nor  lend  himself  in  any  way  to 
further  the  claim  of  either  to  the  fund  in  dispute. 

§  371.  Seeming  exceptions. —  While  it  is  a  rule  that  the  bill 
of  interpleader,  strictly  so  called,  will  only  lie  where  the  com- 
plainant claims  no  interest  in  the  subject-matter  of  the  suit, 
there  appears  to  be  at  least  a  seeming  exception  to  this  rule  in 
cases  where,  to  ascertain  and  establish  his  own  right  to  the 
property  or  subject  of  the  suit,  the  complainant  is  permitted  to 
file  a  bill  in  the  nature  of  a  bill  of  interpleader.  An  example 
is  given:  where  the  "plaintiff  is  entitled  to  equitable  relief 
against  the  owner  of  the  property,  and  the  legal  title  thereto 
is  in  dispute  between  two  or  more  persons  so  that  he  cannot  as- 

1  Craig  &  Phillips  (Eng.  Ch.),  198,  204. 


608  INTERPLEADER.  [§  372. 

certain  to  which  it  actually  belongs,  he  may  file  a  bill  against 
the  several  claimants  in  the  nature  of  a  bill  of  interpleader  for 
relief."  ^ 

Where  two  parties  were  claiming  to  be  the  owner  of  a  cer- 
tain bond  and  mortgage  security  given  by  the  complainant, 
the  complainant  was  allowed  to  file  his  bill  in  which  he  prayed 
that  the  defendants  might  interplead  and  settle  the  mutter  be- 
tween themselves,  that  the  bond  and  mortgage  might  be  de- 
livered up  and  canceled  upon  his  paying  into  the  court  the 
amount  due  thereon,  and  that  the  proper  parties  might  execute 
a  discharge  of  the  bond  and  mortgage  that  the  same  might  be 
canceled  of  record.  The  chancellor  said:  "A  bill  of  inter- 
pleader, strictly  so  called,  is  where  the  complainant  claims  no 
relief  against  eitlier  of  the  defendants,  but  only  asks  that  he 
may  be  at  liberty  to  pay  the  money  or  deliver  the  property  to 
the  one  to  whom  it  of  right  belongs,  and  may  thereafter  be 
protected  against  the  claims  of  both.  In  such  cases  the  only 
decree  to  which  the  complainant  is  entitled  is  a  decree  that 
the  bill  is  properly  filed;  that  he  be  at  liberty  to  pay  the  funds 
into  court  and  have  his  costs;  and  that  the  defendants  inter- 
plead and  settle  the  matter  between  themselves.  But  a  bill  in 
the  nature  of  a  bill  of  interpleader  to  redeem  and  to  be  let 
into  the  possession  of  mortgaged  premises  may  be  filed."  And 
the  court  decreed  that  the  mortgage  in  controversy  should  be 
discharged;  that  the  bonds  and  notes  should  be  given  up  and 
canceled,  and  that  the  money  paid  into  court  should  abide  the 
final  decision  of  the  cause  between  the  other  defendants.^ 

§  372.  As  to  title  of  claimants  to  the  property,  obliga- 
tion or  thing  in  controversy. —  It  seems  to  be  a  requisite 
to  the  filing  of  a  bill  of  interpleader  that  there  should  be 

1 2  DanL  Ch.  PI.  &  Pr.  (6th  ed.)  1572;  title  is  in  dispute,  so  that  the  com- 

2  Story,  Eq.  Jiir.,  sec.  824.  plainant  cannot  ascertain  to  which 

2  Bedell  v.  Hoffman,  2  Paige  Ch.  of  the  parties  to  that   controversy 

(N.  Y.)  199,  200.     In  Mohawk,  etc.  R  the  property  really  belongs,  he  may 

Co.  V.  Clute,  4  Paige  Ch.  (N.  Y.)  384,  file  a  bill,  in  the  nature  of  a  bill  of 

392.  the  court  say:  "  Where  there  are  interpleader,  and  for  relief,  against 

other  grounds  of  equitable  jurisdic-  both   of  the    claimants."     Parks   v. 

tion,    however,    as    in    those    cases  Jackson,  11  Wend.  (N.  Y.)  443;  Thom- 

where  the  complainant  is  entitled  to  son  v.  Ebbets,  1  Hopk,  Ch.  (N.  Y.) 

equitable    relief  against    the    legal  272. 
owner  of  the  property,  if  the  legal 


§  372.]  INTEEPLEADEE.  509 

privity  of  title  or  contract  between  the  claimants,  and  where 
such  privity  does  not  exist  —  where  the  titles  are  independent 
and  not  derived  from  the  same  source,  but  each  is  asserted  as 
wholly  paramount  to  the  other  —  the  suit  for  interpleader 
cannot  be  maintained.  "While  this  doctrine  of  privity  of  es- 
tate or  title  between  the  claimants  has  met  with  considerable 
opposition,  the  weight  of  authority  seems  to  still  uphold  the 
rule. 

In  Gihson  v.  Goldthwaite'^  the  court,  discussing  this  question, 
say:  "  In  the  cases  of  adverse  independent  titles,  it  is  said  the 
true  doctrine  seems  to  be,  that  the  party  holding  the  property 
must  defend  himself  as  well  as  he  can  at  law;  and  he  is  not 
entitled  to  the  assistance  of  a  court  of  equity;  for  that  would 
be  to  assume  the  right  to  try  merely  legal  titles,  upon  a  con- 
troversy between  parties,  where  there  is  no  privity  of  contract 
between  them  and  the  third  person  who  calls  for  an  inter- 
pleader." And  in  Kyle  v.  Coal  Co}  it  was  said  that  "one  of 
the  essential  elements  of  the  equitable  remedy  of  interpleader, 
as  laid  down,  is  that  all  the  adverse  titles  or  claims  to  the 
thing  or  debt,  in  reference  to  which  the  bill  is  filed,  must  be 
dependent,  or  be  derived  from  a  common  source." 

In  Snodgrassv.  Butler^ it  was  held  that  a  bill  of  interpleader 
will  not  ordinarily  lie,  except  in  cases  of  privity  of  some  sort 
between  the  parties,  as  of  estate,  title  or  contract,  and  that  if 
the  several  claimants  assert  rights  under  adverse  titles  which 
are  of  different  natures,  such  rights  cannot  properly  be  liti- 
gated in  an  action  of  interpleader.  The  court  say:  "  The  rule 
linds  an  apt  illustration  in  the  case  of  a  tenant,  who  can  only 
interplead  those  persons  who  claim  rent  in  privity  of  contract 
or  tenure;  as  where  the  conflict  is  between  the  original  lessor 
and  one  claimmg  the  rent  as  assignee.  But  if  a  stranger 
claims  under  title  paramount,  there  is  an  absence  of  privity, 
and  the  suit  cannot  be  maintained." 

1  7  Ala.  281,  290.     An  early  leading        3  54  Miss.  45.  49;  Wells,  Farejo  &  Co. 

Englisli    case    which    is    generally  v.    Miner,   25   Fed.    533;  Third    Nat. 

quoted  and  reied  upon   is  that  of  Bank  v.  Skillings  et  al.,  132  Mass.  410: 

Crawslmy  v.  Tliornton,  2  Mylne  &  North  Pac.  Lumber  Co.  v.  Lang,  28 

Craig,  1.     Penrson  v.  Cardon,  2  Russ.  Oreg.  246,  42  Pac.  799,  52  Am.  St.  Rep. 

&  Mylne.  606.  780;  First  Nat.  Bank  v.  Bininger,  26 

ni2  Ala.  606;  Stone  v.  Reed,  152  N.  J.  Eq.  345. 
Mass.  179. 


510  INTERPLEADER.  [§  373. 

T)Ut  in  Crane  v.  McDonald^  the  doctrine  was  somewhat 
questioned  and  the  court  in  its  opinion  said:  "While  the  early 
authorities  were  exacting  upon  this  subject,  many  of  the  later 
cases  have  been  less  rigid,  and  some  have  ignored  it  alto- 
gether. The  doctrine  seems  to  have  been  abrogated  in  Eng- 
land, parti}'  by  statute  and  partly  by  judicial  decisions.  ]\Ir. 
Pomeroy,  referring  to  the  rule,  says  that  '  it  is  a  manifest  im- 
perfection of  the  equity  jurisdiction  that  it  should  be  so  lim- 
ited. A  person  may  be  and  is  exi)osed  to  danger,  vexation 
and  loss  from  conflicting  independent  claims  to  the  same 
thing,  as  well  as  from  claims  that  are  dependent,  and  there  is 
certainly  nothing  in  the  nature  of  the  remedy  which  need  pre- 
vent it  from  being  extended  to  both  classes  of  demands.'  It 
is  not  surprising,  therefore,  that  courts  have  sometimes  ignored 
this  doctrine  in  their  decisions,  or  have  been  ready  to  admit 
exceptions  to  its  operation."  - 

§  373.  The  real  oflice  of  interpleader. —  The  real  office  of 
an  interpleader  is  not  to  protect  the  plaintiff  against  doubtful 
liability,  for  if  he  has  in  any  way  made  himself  liable,  even 
for  the  same  demand,  to  two  or  more  claimants,  an  inter- 
pleader will  not  be  supported.  It  is  essential  that  the  plaintifT 
is  in  fact  liable  to  only  one  claimant  for  the  payment  of  the 
amount,  or  performance  of  the  duty  or  obligation,  but  to  which 
one  it  is  doubtful.  The  true  reason  for  supporting  an  inter- 
pleader is  to  shield  the  party  from  the  annoyance  and  expense 
incident  to  the  defending  of  two  or  more  suits  from  several 
claimants  of  the  same  thing.  As  was  said  by  the  vice-chancel- 
lor in  Crawford  v.  Fischer:^  "The  office  of  an  interpleading 
suit  is  not  to  protect  a  party  against  a  double  liability,  but 
against  double  vexation  in  respect  of  one  liability.  If  the 
circumstances  of  a  case  show  that  the  plaintiff  is  liable  to  both 
claimants,  that  is  no  case  for  interpleader.  It  is  of  the  essence 
of  an  interpleading  suit  that  the  plaintiff  shall  be  liable  to 
one  only  of  the  claimants;  and  the  relief  which  the  court 
affords  him  is  against  the  vexation  of  two  proceedings  in  a 
matter  which  may  be  settled  in  a  single  suit."  The  ground 
of  jurisdiction  seems  to  be  the  apprehension  of  danger  to  the 

1 118  N.  Y.  648.  Co.  v.  White,  44  Mich.  25;  Farley  v. 

2  Pomeroy's  Eq.  Jur.,  sec.  1324,  note.     Blood,  30  N.  H.  354;  Newhall  v.  Kas- 
3 1  Hare  (Eng.),  436,  441 ;  Mich,  etc    tens,  70  III  156. 


^  374.]  INTERPLEADER.  511 

plaintiff  from  the  doubtful  and  conflicting  claims  of  the  sev- 
eral parties  as  between  themselves;  claims  so  conflicting  that 
the  plaintiff  is  unable  to  determine  to  whom  to  pay  the  debt 
or  render  the  duty,  and  is  in  constant  danger  of  annoyance  by 
reason  of  threatened  litigation.  And  in  this  connection,  and 
by  way  of  illustrating  the  fact  that  there  must  be  real  or  at 
least  reasonable  doubt  as  to  whom  the  debt  should  be  paid,  or 
the  duty  or  obligation  rendered,^  it  is  said  that  if  this  doubt 
does  not  exist  the  court  will  not  assume  jurisdiction,  for  if  a 
claimant  is  really  and  justly  entitled  to  the  debt,  duty  or  other 
thing,  he  should  not  be  subjected  to  the  delay  and  expense  of 
a  chancery  proceeding  without  his  consent  before  he  can  be 
allowed  to  receive  what  is  justly  his  own.'' 

§  371.  Injunction  to  protect  plaintiff  from  a  multiplicity 
of  suits.— The  bill  of  interpleader  is  for  the  protection  of  the 
plaintiff  who  stands  neutral  as  between  the  parties  claimant. 
He  confesses  his  liability  to  pay  the  debt,  or  perform  the  duty, 
but  to  whom  he  is  liable  he  is  in  doubt.     To  pay  the  debt 
to  one  of  the  claimants  would  but  subject  him  to  litigation 
with  other  claimants;  and  so  he  may  bring  the  amount  of 
money  into  court  and  leave  it  there  to  be  paid  over  as  the  court 
may  direct;  or  he  may  deposit  it  in  bank  subject  to  the  order 
of  the  prevailing  claimant;  or  he  may  tender  performance  of 
the  obligation  in  such  a  way  that  the  prevailing  claimant  may 
have  the  benefit  of  it;  that  is  to  say,  if  it  be  the  conveyance 
of  real  property,  he  may  make  his  several  deeds  to  the  several 
defendants  and  deposit  them  with  the  court  or  in  a  bank  to  be 
delivered  upon  the  order  of  the  court  to  the  prevailing  claim- 
ant, and  when  this  is  done  and  litigation  is  threatened  by  dif- 
ferent claimants,  he  may,  on  filing  his  bill  for  interpleader, 

1  Atkinson  v.  Manks,  1  Cow.  (N.  Y.)  litigate  their  demands  and  submit 
705-  Dorn  v.  Fox,  61  N.  Y.  364.  to  the  decision  of  the  court  their  re- 

2  Bedell  v.  Hoffman,  2  Paige  (N.Y.),  spective  rights.  But  a  bill  of  inter- 
199.  In  Am  v.  Arn,  81  Ma  App.  133,  pleader  rests  upon  the  fundamental 
139,  quoting  from  Hayman  v.  Cam-  principle  that  the  complainant  is  a 
ero'n,  46  Miss.  735,  it  is  said:  "That  mere  holder  of  a  stake  which  is  con- 
where  there  are  two  or  more  claim-  tested  for  by  the  other  party.  If 
ants  of  a  debt,  or  other  matter,  a  the  complainant  seeks  relief  in  the 
party  may  resort  to  chancery  for  his  premises  against  either  party,  or 
protection  against  conflicting  claims  asserts  a  right  or  claim  against 
and  the  harassment  of  several  suits,  either  or  both  of  them,  it  would  be 
and  insist  that  the  claimants  shall  fatal  to  his  bill." 


612  INTERPLEADER.  [§  374. 

have  an  order  for  a  temporary  injunction  against  the  several 
claimants  enjoining  them  from  proceedings  against  him  until 
the  further  order  of  the  court,  and  thus  may  have  the  contro- 
versy as  to  him  settled  by  the  court  of  chancery  upon  his  bill 
of  interpleader.  So  in  an  action  by  an  executor,  individually 
and  in  bis  official  capacity,  to  compel  an  interpleader  between 
persons  claiming  the  special  fund  as  trustees  thereof  adversely 
to  the  estate,  and  who  had  brought  an  action  against  the  exec- 
utor to  recover  the  fund,  and  other  persons  claiming  the  same 
as  distributees  of  the  estate,  the  plaintifif  having  paid  the  money 
into  court  under  its  order,  it  was  held  that,  upon  filing  a  suit- 
able bond  as  provided  by  law  and  approved  by  the  court,  the 
defendants  should  be  enjoined  from  undertaking  in  any  way 
whatever  to  enforce  the  decree  of  distribution  pending  the  ac- 
tion. The  court  said :  "  The  plaintiff,  however,  it  aj^pears,  does 
not  dispute  the  claim  of  the  appellants,  but  seeks  protection 
from  the  demands  and  claims  of  other  defendants  for  the  same 
money,  and  who  are  not  bound  by  the  decree.  Under  such 
circumstances  it  would  seem  but  just  that  the  plaintiff,  as  ex- 
ecutor, should  not  be  compelled  to  defend  said  action  and  sub 
ject  himself,  perhaps,  to  liability,  not  only  to  pay  said  money 
a  second  time,  but  also  the  costs  of  litigation."* 

The  injunction  is  applied  for  in  the  usual  manner,  but  it  is 
said  that  it  need  not  be  supported  by  an  affidavit  of  merits; 
the  bill,  no  doubt,  which  sets  forth  the  facts  upon  which  the 
interpleader  is  based,  would  be  a  sufficient  showing  as  to 
merits.  The  money  or  property,  however,  in  dispute  should 
be  secured,  either  by  a  payment  into  court  or  in  some  other 
manner  satisfactory  to  the  court,  and  the  injunction  should  be 
framed  in  such  a  way  that  it  would  not  deprive  the  defend- 
ants of  any  legal  rights  in  the  matter.     By  injunction,  pro- 

1  Fox  V.  Sutton,  137  Cal.  51o,  519;  grante'i  and  it  was  held  that  an  in- 

James  v.  Sams.  90  Ga.  404,  17  S.  E.  junction  should  issue  restraining  the 

962.     Where  pending  a  suit  by  cred-  prosecution  of   tlie   actions  pending 

itors  of  the  holder  of  a  certificate  of  the  termination  of  the  interpleader, 

deposit  issued  by  a  firm  of  bankers,  Weikel  v.  Gate,  58  Md.  105;  Fitzger- 

another  suit  was  brought    against  aid  v.  Elliot  (N.  J.  Eq.,  1889),  18  Atl. 

them  by  the  present  holder  of  the  579;    Mercantile  Deposit  Co.  v.  Di- 

certificate,  who  took  it  after  the  for-  mon,  72  Hun  (N.  Y.).  638;  Fowler  v. 

nier    suit    was    brought,    an    order  Lee.  10  Gill  &  J.  (Md.)  35a 
interpleading    the    claimants     was 


§§  375,  376.]  INTERPLEADER.  513 

ceedings  in  courts  of  law,  and  proceedings  in  courts  of  equity, 
may  be  restrained,  even  though  instituted  in  a  different  court 
than  the  one  in  which  the  interpleader  is  pending. 

§  375.  Plaintiff  should  tender  performance  of  the  duty 
or  obligation,  or  secure  it.  —  Before  the  court  will  make  a 
decree  that  the  party  claimants  interplead,  it  requires  some- 
thing more  than  the  mere  allegations  of  the  plaintiff  that  he 
is  a  disinterested  party  and  is  willing  to  perform  the  duty  or 
obligation,  or  pay  the  money  that  is  in  dispute  to  the  party 
found  by  the  court  to  be  entitled  thereto.  As  a  condition  pre- 
cedent to  such  a  decree,  the  plaintiff  must  not  only  allege  the 
willingness  to  pay,  but  he  must  make  some  actual  tender  of 
performance  upon  his  part,  and  as  the  court  may  direct.  If  it  is 
money,  he  should  pa}'^  it  into  court;  if  it  is  the  conveyance  of 
lands,  he  should,  as  we  have  said,  make  proper  conveyance  to 
the  several  claimants  and  deposit  them  subject  to  the  order 
of  the  court.^  And  so  important  is  this  obligation  to  tender 
the  amount,  or  perform  the  duty  or  obligation,  that  the  court 
will  not  make  its  order  until  such  tender  or  performance  is 
completed  upon  the  part  of  the  plaintiff.^  It  has  been  said 
that  this  rule  has  been  founded  in  wisdom.  Tiiat  "  it  would 
furnish  a  strong  motive  in  many  cases,  to  delay  the  payment 
of  money  by  filing  bills  of  interpleader,  if  a  party  could  keep 
and  retain  the  money  in  his  own  hands  during  the  lawsuit.' 

§  376.  The  parties  to  the  bill  of  interpleader. —  The  per- 
son who  has  the  fund,  property  or  thing  in  his  possession,  and 
from  whom  it  is  claimed  by  two  or  more  claimants,  and  who 
is  liable  to  suffer  mjury  because  of  the  several  conflicting 
claims,  is  a  proper  party  plaintiff,  and  may,  if  the  circumstances 
entitle  him  to  proceed  by  a  suit  for  interpleader,  file  a  bill 
of  complaint.  All  persons,  and  there  must  be  more  than  one, 
who  claim  from  the  party  plaintiff  the  fund,  property  or  thing, 
or  the  performance  of  the  duty  or  obligation  which  is  the  sub- 
ject-matter of  the  controversy,  should  be  made  parties  defend- 
ant.    It  is  a  rule  that  all  persons  who  are  interested  as  claira- 

1  Ante,  §  374.  v,  Watson,  Dakin  v.  Watson,  59  Miss. 

^3  Danl.Ch.  PI.  &Pr.  (6thed.)1563.  619;  Mohawk,  etc.   Ry.   Co.  v.  Clute, 

»  Parker  v.  Barker,  43  N.  EL  78,  96;  4  Pai!2;eCh.  384;  McGarrah  v,  Prather, 

Nash  V.  Smith.  6  Conn.  421;  Shaw  v.  1  Blackf.  (Ind.)  299. 

Coster,  8  Paige  Ch.  (N.  Y.)  :«9;   Blue 
33 


514  INTERPLEADER.  [§  377. 

ants,  and  whom  the  decree  would  affect,  should  be  made 
parties  defendant.  And  it  has  been  held  that  a  legatee  inter- 
ested in  the  result  of  a  bill  of  interpleader  between  parties 
claiming  a  fund  in  the  hands  of  an  executor  should  be  a  party, 
and  if  not  made  a  part}^  the  court  should  permit  him  to  appear 
in  the  cause  upon  his  showing  that  he  is  largely  interested  in 
the  result.^  It  may  be  necessarj'^  to  make  one  a  party  to  the 
bill  for  the  purpose  of  an  injunction  which  is  prayed  for,  who 
would  not  be  a  necessary  party  to  a  bill  strictly  for  interpleader.- 

A  corporation  may  be  a  party  plaintiff,  and  in  such  case  it 
has  been  held  that  the  treasurer  of  the  company  cannot  be 
made  a  party,  but  that  the  corporation  itself  must  file  the  bill. 
This  question  was  under  discussion  in  Hechmer  v.  Gilligan^ 
where  the  treasurer  of  the  corporation  filed  a  bill  of  inter- 
pleader. In  the  opinion  the  court  say :  "  The  object  of  a  bill  of 
interpleader  is  to  protect  a  complainant  standing  in  the  situa- 
tion of  an  innocent  stakeholder,  and  when  a  recovery  against 
him  by  one  claimant  of  the  fund  might  not  protect  him  against 
a  recovery  by  another  claimant.  After  judgments  are  obtained 
by  two  claimants  for  a  fund  against  a  debtor,  it  is  too  late  for 
the  debtor  to  file  a  bill  of  interpleader,  but  he  is  liable  for  both 
judgments.  It  is  said  by  some  of  the  text-writers  that  an  agent 
may  file  a  bill  of  interpleader.  Where  this  is  allowed  it  is  under 
peculiar  circumstances;  where  the  agent  might  be  liable,  if  he 
paid  the  debt,  to  the  principal;  as  where  the  principal  had  cre- 
ated a  lien  in  favor  of  another  person  on  funds  in  the  hands  of 
his  agent,  the  agent  may  file  a  bill  of  interpleader  against  his 
principal  and  the  other  claimant." 

§  377.  The  bill  of  complaint. —  The  bill  of  interpleader  is 
subject  to  the  general  rules  which  are  applicable  to  bills  in 
equity.  It  must  be  satisfactorily  complete  in  all  its  parts  and 
alleofations  to  make  out  a  case  which  would  entitle  the  com- 

1  Wineman  v.  Circuit  Judge,  117  a  judgment  ordering  defendants  to 
Mich.  320,  75  N.  W.  617;  Blake  v.  interplead,  that  such  other  parties  as 
Garwood,  42  N.  J.  Eq.  276;  Gill  v.  from  their  interest  in  the  litigated 
Cook,  42  Vt.  140.  property  are  neces.sary  for  its  proper 

2  Oil  Run,  etc.  Co.  v.  Gale,  6  W.  Va.  determination  may  be  joined.  Bren- 
525;  Browning  v.  Watkins,  18  Miss,  nan  v.  Hall,  62  Hun  (N.  Y.),  622; 
482;  Bell  v,  Gunn,  94  Ga.  642.  21  S.  E.  Hines  v.  Spruill,  22  N.  C.  93. 

899.     In  Leavitt  v.  Fisher.  11  N.  Y.         3  28  W.  Va.  750,  757. 
Sup.  Ct.  (4  Duer),  l,it  wasiield,  under 


g  377.]  INTERPLEADER.  515 

plainant  to  the  decree  for  interpleader  prayed  for.  To  that 
end  the  party  plaintiff  or  complainant  must  have  such  relations 
to  the  subject-matter  of  the  bill  as  entitles  him  to  a  decree 
that  the  defendants  interplead;  he  must  show  by  his  bill, 
among  other  things,  that  the  amount  of  money,  the  obligation 
or  thing  is  in  his  possession  or  under  his  control;  that  he  has 
no  other  claim  to  it  than  that  of  a  disinterested  holder  for  the 
benefit  of  the  rightful  and  legal  claimant;  that  he  has  already 
deposited,  or  that  he  is  now  ready  to  deposit,  the  fund  or  per- 
formance of  the  duty  or  obligation  with  the  court  as  it  may 
order.^ 

The  bill  should  also  allege  specifically  the  nature  of  the 
claims  of  the  defendants  so  that  it  may  appear  from  the  alle- 
gations that  they  are  of  that  nature  and  character  and  of  fit 
subject  to  support  a  bill  of  interpleader.  But  the  complainant 
is  only  bound  to  "  set  out  the  claim  as  exhibited  or  made  to 
him,  and  cannot  be  supposed  to  do  it  with  as  much  accuracy 
as  the  claimants  themselves  would  do.  It  is  enough  for  him 
to  satisfy  the  court  that  there  are  opposing  claims,  against 
which  he  is,  in  equity,  entitled  to  protection  until  they  are  set- 
tled, so  that  he  can  pay  with  safety.  The  practice  of  the  court 
has  been  liberal  in  favor  of  persons  standing  in  the  situation 
of  stakeholders  or  agents,  having  no  interest  in  the  property 
claimed,  and  only  desiring  honestly  to  pay  it  where  it  is  justly 
due.  It  has  proceeded  on  the  principle  that  they  have  a  right 
to  protection,  not  from  being  compelled  to  pay,  but  from  the 
vexation  of  attending  all  the  suits  that  may  possibly  be  insti- 
tuted against  them.  Such  a  bill  may  be  filed,  although  the 
claim  of  one  of  the  defendants  is  actionable  at  law,  and  that 
of  the  other  of  equitable  cognizance."  ^    It  should  be  clearly 

1  Cobb  V.  Rice.  130  Mass.  231;  Stone  tainly  they  must  be  stated  suffi- 
V.  Reed,  1.'33 Mass.  179;  Bliss  V.French,  ciently  to  give  a  color  of  right  to 
117  Mich.  538.  each  of  the  defendants.    We  assume 

2  Lozier  v.  Adm'rs,  etc.,  3  N.  J.  Eq.  that  no  case  can  be  found  where  a 
325,  329.  In  Robards  v.  Clayton,  49  simple  statement  that  the  plaintiff 
Mo.  App.  608,  612,  it  was  said:  holds  a  certain  sum  as  trustee,  and 
"While  the  respective  claims  need  that  two  or  more  persons  claim  it  as 
not  be  stated  with  such  exactness  the  beneficiaries  of  the  trust,  with- 
as  the  defendants  themselves  may  out  more,  was  held  a  sufficient 
be  required  to  state  them  after  statement  to  maintain  a  bill  of  in- 
theyare  required  to  interplead,  cer-  terpleader  against  the  alleged  claim- 


516 


INTEKPLEADEK. 


[§37' 


allecred  that  the  defendants  have  each  of  them  claimed  from 
the  plaintiff  the  debt,  duty,  obligation  or  thing,  and  that  he  is 
in  danger  of  suffering  injur}^  because  of  the  conflicting  claims 
made  upon  him;  that  he  is  in  doubt  as  to  which  of  the  claim- 
ants is  entitled  to  the  subject-matter  of  the  claim,  but  he 
should  not  deny  the  claim  made  by  any  of  the  defendants,  for 
the  bill  must  show  that  the  plaintiff  is  entirely  indifferent,  and 
is  merely  a  stakeholder  and  disclaims  any  personal  interest  in 
the  thing  in  question,  for  if  the  bill  should  show  that  one  of 
the  defendants  is  entitled  to  the  fund,  or  duty,  or  thing,  and 
the  others  are  not,  it  would  bo  subject  to  a  demurrer  by  all  of 
the  defendants.  The  bill  should  also  show  that  the  adverse 
claims  of  the  defendants  are  dependent  upon,  and  are  derived 
from,  a  common  source.^  But,  as  we  have  seen,  a  bill  may  be 
filed  in  the  nature  of  a  bill  of  interpleader  for  the  purpose  of 
establishing  the  plaintiff's  own  right  and  claim  to  the  prop- 


ants."  Funk  V.  Avery,  84  Mo.  App. 
490,  And  in  Supreme  Lodge,  etc.  v. 
Raddatz,  57  111.  App.  119,  122,  it  is 
said:  "The  stakeholder  who  files  the 
bill  cannot  be  presumed  to  know  all 
the  facts  upon  which  various  parties 
are  claiming  from  him  the  same 
thing;  therefore  he  is  not  required 
to  set  forth  matters  and  things 
which  show  an  apparent  title  in 
either.  It  is  enough  in  this  regard 
to  show  the  danger  he  is  in,  his  in- 
difference as  to  each  claimant,  and 
that  he  is  ready  to  pay  to  whomso- 
ever is  entitled;  that  he  brings  the 
money  into  court  and  asks  that  par- 
ties who  have  really  no  controversy 
with  him  but  only  with  each  other 
shall  not  vex  him  with  costs  and  ex- 
penses over  a  dispute  in  which  he 
has  no  interest."  Pomeroy's  Eq.  Jur., 
sees.  1318,  1320  and  note;  National 
Bank  v.  Augusta,  etc.  Co.,  99  Ga. 
286;  Warnock  v.  Harlow,  96  Cal. 
298;  Mohawk,  etc.  Ry.  Co.  v.  Clute, 
4  Paige  Ch.  (N.  Y.)  384;  Varrian  v. 
Berrian,  42  N.  J.  Eq.  1,  where  the 
bill  was  dismissed  for  failure  to  state 
the  interests  of  the  defendants.     In 


Blue  V.  Watson,  59  Miss.  619,  and  in 
Starling  v.  Brown,  7  Bush  (Ky.),  164, 
it  was  held  that  the  bill  must  show 
that  each  defendant  made  a  claim. 
Bolin  V.  St  Louis,  etc.  Ry.  Ca  (Tex. 
Civ.  App.,  1901),  61  S.  W.  444.  In 
Shaw  v.  Coster,  8  Paige  (N.  Y.), 
339.  347,  the  chancellor  said:  "As  I 
understand  the  law,  the  complainant 
in  a  bill  of  interpleader  must  show 
that  he  is  ignorant  of  the  rights  of 
the  respective  parties  who  are  called 
upon  by  him  to  interplead.  Or  that 
at  least  there  is  some  doubt,  in  point 
of  fact,  to  which  claimant  the  debt 
or  duty  belongs;  so  that  he  cannot 
safely  pay  or  render  it  to  one,  with- 
out risk  of  being  made  liable  for  the 
same  debt  or  duty  to  the  other. 
And  therefore  if  the  complainant 
states  a  case  in  his  bill  which  clearly 
shows  that  one  defendant  is  entitled 
to  the  debt  or  duty,  and  that  the 
other  is  not,  both  defendants  may 
demur." 

1  Morrill  v.  Manhattan  Life  Ins. 
Co.,  183  111.  260;  Kyle  v.  Mary  Lee 
Co.,  112  Ala.  606,  20  So.  851. 


g  378.1  INTERPLEADER.  ^1  • 

erty  or  thing  in  controversy;  as  where  "the  complainant 
asks  for  some  relief  over  and  above  a  mere  injunction  against 
suits  by  the  contesting  parties,  and  states  facts  which  entitle 
him  to  such  relief  independent  of  thefactof  the  adverse  claims 
of  the  several  defendants."^  If  in  such  case  the  bill  alleges 
facts  which  entitle  the  complainant  to  relief  independent  of  a 
strict  interpleader  aspect,  it  is  not  necessary  to  allege  that  he 
has  no  interest  in  the  subject-matter  in  controversy,  or  that  he 
is  entirely  indifferent;  for  by  the  very  nature  of  the  case  he  is 
interested  but  only  to  the  extent  of  establishing  his  own  status 
and  protecting  his  own  rights  in  the  matter.' 

§  378.  The  prayer.— In  the  strict  bill  of  interpleader  the 
plaintiff  should  not  pray  for  relief  other  than  that  the  defend- 
ants may  set  forth  their  several  claims,  and  interplead  and  ad- 
just and  settle  their  demands  between  themselves;  for  from 
the  very  nature  of  the  bill  he  cannot  claim  affirmative  relief 
against  any  of  the  claimant  defendants;  he  can  only  ask  leave 
to  pay  the  money  or  deliver  the  property,  or  render  the  duty 
or  obligation  to  the  one  entitled  to  it,  so  that  he  may  there- 
after be  protected  against  all  of  the  claims  of  the  defendants. 
The  decree  asked  for  in  strict  interpleader  is,  therefore,  that 
the  complainant  be  entitled  to  an  interpleader  on  the  part  of 
the  defendants  to  the  bill;  that  this  being  obtained  he  may  be 
thenceforth  altogether  out  of  the  suit,  the  defendants  alone 
being  left  to  settle  their  respective  claims  without  any  inter- 
ference on  the  part  of  the  plaintiff.* 

In  Illingworth  v.  Bowe'  the  court  say:  "To  state  a  case  of 
strict  interpleader  it  is  necessary  for  the  complainant  to  show 
that  conflicting  claims  are  made  against  him  for  the  same  thing 
by  two  or  more  different  persons,  to  aver  that  he  has  no  inter- 
est in  the  subject-matter  of  their  controversy,  and  also  admit 
that  the  title  to  the  thing  in  dispute  is  in  some  one  of  the  con- 
flicting claimants,  but  in  which  he  is  unable  to  decide.  He 
cannot  ask  for  affirmative  relief  against  either  of  the  hostile 

1  Van  Winkle  v.  Owen,  54  N.  J.  Eq.  3  st.  Louis,  etc.  Co.  v.  Alliance,  etc. 

953  257  Ca,  23  Minn.  7;  2  Barb.  Ch.  Pr.  117. 

''  iAnte   §  271;   Story,  Eq.  PL,  sec.  ♦52  N.  J.  Eq.  360;  2  Story,  Eq.  Jur. 

297&;  Aleck  v.  Jackson,  4  Dick.  (N.  J.)  824;  Story.  Eq.  PI,  sec.  2976;  Bedell 

507;  2  Danl.  Ch.  PL  (5th  ed.)  1568;  v.  Hoflfman,  2  Paige  Ch.  (N.  Y.)  199; 

Vy  vyan  v.  Vy  vyan,  30  Beav.  (Eng.)65.  Mitf.  &  Tyler,  PL  &  Pr.  447. 


518  INTERPLEADER.  [§  379. 

claimants,  but  must  content  himself  with  simply  praying  that 
they  be  required  to  cease  from  troubling  him,  and  to  settle 
their  dispute  by  some  appropriate  judicial  proceeding  among 
themselves.  But,  as  is  said  by  Judge  Story,  'there  are  many 
cases  where  a  bill,  in  the  nature  of  a  bill  of  interpleader,  will 
lie  by  a  party  in  interest  to  ascertain  and  establish  his  own 
rights  where  there  are  other  conflicting  rights  among  third 
persons.'  Among  the  instances  which  he  gives,  in  which  it  is 
proper  to  have  recourse  to  this  remedy,  is  this:  '  If  a  mortgagor 
wishes  to  redeem  the  mortgaged  estate,  and  there  are  conflict- 
ing claims  between  third  persons  as  to  their  title  to  the  mort- 
gage money,  he  may  bring  them  before  the  court,  to  ascertain 
their  rights,  and  to  have  a  decree  for  a  redemption  so  that  he 
may  make  a  secure  payment  to  the  party  entitled  to  the  money.' 
In  such  a  case  if  the  complainant  prevails,  he  gets  affirmative 
relief;  ...  a  decree  that,  on  the  payment  of  the  mortgage 
debt,  the  mortgage  shall  be  surrendered  to  him  for  cancella- 
tion." 

To  the  special  prayer  should  be  added  a  general  prayer  for 
relief.  If  an  injunction  is  sought  to  restrain  the  claimants 
from  proceeding  against  the  plaintiff  upon  their  several  claims, 
it  should  be  prayed  for;  and  there  should  also  be  added  to  the 
bill  the  usual  prayer  for  process. 

§  379.  Yerification.— If  the  bill  prays  for  an  injunction,  it 
must  be  verified  by  the  complainant,  and  to  every  bill  of  inter- 
pleader the  plaintiff  is  required  to  add  an  affidavit  that  there 
is  no  collusion  between  himself  and  the  defendants.  And  it 
has  been  held  that  the  absence  of  such  an  affidavit  would  ren- 
der the  bill  demurrable.'  If  the  bill  is  filed  by  a  corporation, 
it  should  be  accompanied  by  the  affidavit  of  an  officer  of  the 
company  who  is  cognizant  of  the  facts  that  there  is  no  collusion 
between  the  corporation  or  any  of  its  officers  with  the  claim- 
ants. If  the  plaintiffs  are  copartners,  it  has  been  held  that 
the  affidavit  of  non-collusion  sworn  to  by  one  of  the  partners 
is  sufficient.^     The  reason  for  requiring  an  affidavit  of  non- 

iHome  Life  Ins.  Co.  v.  Caulk,  86  any  of  the    claimants.      Gibson   v. 

Md.  385;  Story,  Eq.  PI.,  sec.  291.  Goldthwaite,  7  Ala.  281;  Hastings  v. 

2 Bliss  V.  French,  117  Mich.  538,  76  Cropper,  3   Del.    Ch.  165;  Nofsinger 

N.  W.  73.  The  object  of  the  affidavit  v.    Reynolds.  52    Ind.  218;  Wing  v. 

is  to  prevent  giving  an  affidavit   to  Spaulding,   64  Yt.   83;   Hechmer  v. 


§  3SU.]  INTERPLEADER.  519 

collusion  is  apparent.  The  sole  ground  on  which  the  court  of 
equity  assumes  jurisdiction  in  this  class  of  cases  is  that  a 
plaintitf  who  stands  neutral  and  as  a  mere  stakeholder,  admit- 
ting his  liability  to  some  one  of  the  claimants,  asks  the  court 
to  whom  he  shall  pay  the  debt,  or  deliver  the  property  or 
thing  in  his  possession.  Neutrality  as  to  claimants  is  there- 
fore an  essential,  and  no  collusion  that  might  benefit  any  of 
the  claimants  will  be  permitted.  The  complainant  must  be 
absolutely  neutral,  not  giving  advantage  to  any  of  the  parties.^ 

§  380.  Defenses  to  bills  of  interpleader. —  The  defenses  to 
bills  of  interpleader  are  similar  to  the  defenses  which  may 
be  interposed  to  bills  in  equity  generally,  and  the  rules  gen- 
erally governing  equitable  defenses  are  applicable.  The  de- 
fenses are  by  demurrer,  plea  or  answer. 

(1)  By  demurrer.  If  the  bill  fails  to  make  out  a  case  that 
will  support  a  decree  of  interpleader,  it  will  be  subject  to  a 
demurrer;  as,  where  the  complainant  had  incurred  an  inde- 
pendent liability  to  one  of  the  defendants.-  Or  if  the  bill  shows 
that  one  of  the  defendants  is  entitled  to  the  debt,  duty  or  ob- 
ligation, thus  favoring  a  claimant  of  the  fund;'  or  if  he  denies 
his  liability  to  either  of  the  defendants  he  is  not  entitled  to 
the  remedy,  for  by  such  an  allegation  he  destroys  the  very 
foundation  upon  which  it  rests;*  or  where  it  appears  that  the 
claimants  do  not  derive  their  rights  or  titles  from  the  same 
source;^  or  where  there  was  no  sufficient  statement  of  the 
nature  of  the  plaintiff's  position;  as  where  the  bill  fails  to  show 
that  he  sets  up  no  claim  to  the  fund  or  thing  in  his  possession, 
and  is  but  a  disinterested  stakeholder;  or  where  there  is  no 

Gilligan,   28   W.   Va.  750.     In  Con-  fund    into    court  he   is  entitled  to 

necticut  it  has  been  held  that  such  withdraw  from  the  suit  and  leave 

an  affidavit  is  not  required.     Con-  the  defendants  to  establish  their  re- 

solidated,  etc.  Soc.  v.  Staples,  23  Conn,  spective  rights  to  the  fund  between 

544.  themselves." 

1  Shaw  V.  Coster,  8  Paige  Ch.  339;  sshaw  v.  Coster,  8  Paige,  348; 
Story,  Eq.  PL,  sec.  297;  Mt.  Holly,  Sprague  v.  West,  127  Mass.  471;  Bri- 
eta  Co.  V.  Ferree,  17  N.  J.  Eq.  117;  ant  v.  Reed,  14  N.  J.  Eq.  271;  Parker 
Cobb  v.  Rice,  130  Mass.  231.  v.  Barker,  42  N.  H.  78;  Crass  v.  Mem- 

2  In  Holmes  v.  Clark.  46  Vt.  22,  28,  phis,  etc.  R  Co.,  96  Ala.  447. 

the  court  say:     "In  a  proper  bill  of  ^McHenry  v.  Hazard,  45  Barb.  Ch. 

interpleader  the  orator  should  stand  (N.  Y.)  657. 

in  such  a  relation  to  the  fund  and  *  Stone  v.  Reed,  152  Mass.  179. 
the  defendants  that  upon  paying  the 


520  INTEKPLEADER.  [§  380. 

averment  of  offer  to  pay  the  debt  or  perform  the  duty  or  obli- 
gation; or  an  allegation  that  he  has  brought  the  money,  or 
that  which  is  necessary  to  a  performance  of  the  obligation,  into 
court  ;^  or  where  there  is  no  averment  of  the  non-collusion  of 
the  plaintiff  with  any  of  the  claimants,  and  no  affidavit  thereof 
attached  to  the  bill;^  or  where  the  defendants'  claims  were 
not  shown  to  be  of  such  a  nature,  or  the  liability  for  them  of 
such  a  nature,  that  the  plaintiff  can  ask  for  an  interpleader. 

(2)  The  2)l^(^-  If  there  are  facts  in  existence  which  the  de- 
fendants can  prove,  but  which  do  not  appear  upon  the  face  of 
the  bill,  and  which,  being  true,  would  show  that  the  court  has 
no  jurisdiction,  or  that  the  plaintiff  has  been  guilty  of  such 
collusion  with  any  of  the  claimants  as  would  evidently  give 
him  or  them  advantage;  or  where  there  are  salient  governing 
reasons  why  the  bill  is  not  sufficient  to  support  a  decree,  a  de- 
fense based  upon  these  reasons  may  be  interposed  by  plea. 

(3)  The  answer.  By  the  answer  the  defendants  or  claimants 
may  deny  the  allegations  of  the  bill,  set  up  facts  in  bar  of  the 
action,  thus  traversing  the  claim  of  the  plaintiff  that  he  has 
the  right  to  a  decree  of  interpleader  against  the  claimants, — 
that  is,  an  issue  by  the  answer  may  be  raised  upon  the  facts 
alleged  in  the  plaintiff's  bill  upon  which  he  depends  for  a  de- 
cree, as,  for  example,  that  the  fund,  the  duty  or  the  obliga- 
tion is  of  such  a  nature,  or  is  in  his  possession  under  such  cir- 
cumstances, as  would  not  entitle  him  to  an  order  that  the  de- 
fendants interplead.  By  answer,  the  defendants,  or  any  of 
them,  may  raise  the  issue  that  there  is  an  independent  liability 
to  the  defendants  or  some  of  them ;  that  the  plaintiff  is  not  a 
mere  disinterested  stakeholder;  that  he  is  not  in  a  position 
that  the  court  can  find  that  he  would  be  injured  by  compliance 
with  the  demands  of  the  defendants.'     And  if  such  denials  or 

1  McGarrah  v.  Prather,  1  Blackf.  s  In  Williams  v.  Matthews,  47  N.  J. 
(Ind.)  299;  Blue  v.  Watson,  59  Miss.  Eq.  196,  198,  the  court  say:  "If,  on 
619;  Snodgrass  v.  Butler,  54  Miss.  45.  complainant's    presentation   of    the 

2  Turnpike  Co.  v.  Ferree,  17  N.  J.  case,  it  appears  on  the  face  of  the 
Eq.  117;  Home  Life  Ins.  Co.  v.  Caulk,  bill  that  it  is  not  a  proper  case  for 
86  Md.  385,  38  Atl.  901 ;  Story,  Eq.  interpleader,  demurrer  will  lie.  But 
PL,  sec.  291;  BarroU  v.  Foreman,  86  if  the  bill  should  show  such  a  case,  a 
Md.  675,  39  Atl.  273;  Look  v.  McCa-  defendant  may,  by  answer,  deny  the 
hill,  106  Mich.  108;  Davis  v.  Davis,  allegations  in  the  complainant's  bill, 
96  Ga.  136,  21  S.  E.  1002;  Shaw  v.  or  set  up  distinct  facts  in  bar  of 
Chester,  2  Edw.  Ch.  (N.  Y.)  405.  the  suit,  and  such  issue  is  to  be  tried 


§§  381,  382.]  INTERPLEADER.  521 

allegations  are  made  by  the  defendants  in  their  answer,  the 
case  will  be  heard  and  the  court  called  upon  to  determine  upon 
the  facts  adduced  at  the  hearing  as  to  the  right  of  the  plaint- 
iff to  a  decree  of  interpleader.  The  defendants,  however,  may 
admit  all  the  facts  and  allegations  of  the  plaintiff's  bill  which 
entitle  hira  to  a  decree  of  interpleader,  and  in  such  case  each 
defendant  alleges  in  his  answer  the  facts  and  circumstances 
upon  which  his  claim  is  based;  setting  out  fully  and  with  suffi- 
cient particularity  his  claim  to  the  fund,  property,  or  thing  in 
the  hands  of  the  plaintiff,  that  the  court  and  his  co-defendants 
may  be  apprised  of  his  contention  in  that  regard. 

§381.  The  replication.— If  the  defendants  or  either  of 
them  set  up  distinct  facts  in  bar  of  the  suit,  or  deny  the  alle- 
gations upon  which  the  right  of  the  plaintiff  rests  for  a  decree 
•of  interpleader,  and  the  plaintiff  desires  to  contest  the  allega- 
tions and  raise  an  issue  of  fact  upon  the  allegations  in  the 
answers,  he  must  file  a' replication.  But  if  the  defendants,  or 
either  of  them,  do  not  deny  the  allegations  of  the  plaintiff's 
bill,  and  do  not  set  up  a  defense  in  bar  of  the  suit,  but  admit 
the  facts  on  which  the  complainant  bases  his  claim  to  a  decree 
-of  interpleader,  it  seems  to  be  generally  conceded  that  the 
plaintiff  need  not  file  a  replication  to  the  answer,  but  may  set 
the  case  down  for  hearing  upon  bill  and  answer,  as  no  proof 
would  be  required;  the  allegations  of  the  bill  and  answer  being 
sufficient  to  support  a  decree  of  interpleader.  In  such  case, 
however,  an  issue  upon  the  several  alleged  claims  of  the  de- 
fendants, as  set  forth  in  their  several  answers,  may  be  tried 
and  determined,  and  a  decree  of  the  court  made  determining 
which  of  the  defendants  are  entitled  to  the  fund,  property  or 
thing  in  question. 

§  382.  The  hearing  and  decree.— The  question  as  to  the 
right  of  the  complainant  to  have  a  decree  requiring  the  de- 
fendants to  interplead  may  be  raised  by  answer  and  proofs 
taken  at  the  hearing.  It  seems  to  be  generally  conceded  that 
questions  of  this  kind  need  not  be  raised  at  an  earlier  stage  of 
the  case,  that  is,  before  an  answer  and  trial  upon  the  merits.^ 

according   to   the    practice    of  the  Wing  v.  Spaulding,  64  Vt.  83;  Yateg 

court."    Story,  Eq.  PL   297;  Hall  v.  v.  Tisdale,   3  Edw.  Ch.  (N.  Y.)  71; 

Baldwin,  45  N.  J.^Eq.  858,  865.  Mt.  Holly,  etc.  Co.  v.  Ferree,  17  N.  J. 

1  Toulmin   v.   Reid,   14   Beav.  499;  Eq.  117. 


522  INTERPLKADER.  [§  ^^2. 

Xo  affirmative  relief  can  be  decreed  to  the  plaintiff  in  a  strict 
bill  of  interpleader.'  Upon  the  hearing  of  the  cause  upon  bill 
and  answer,  or  upon  pleadings  and  proof,  if  the  court  deter- 
mines that  the  case  is  one  in  which  a  decree  for  interpleader 
should  be  made,  it  will  so  decree;  and  if  the  bill  be  one  of 
strict  interpleader,  the  complainant  will,  by  this  decree,  be  out 
of  the  case.  But  it  has  been  held  that  he  cannot  withdraw 
until  he  has  complied  with  the  requirement  to  deliver  the  funds 
or  pay  the  debt  to  those  entitled  to  them;  or  render  the  duty 
or  deliver  the  property  to  the  rightful  claimant;  or  bring  the 
money,  or  fund,  or  property,  or  thing,  into  court,  or  the  con- 
veyances that  represent  the  property,  as  the  court  may  direct.^ 
By  a  decree  of  interpleader  the  plaintifif  is  held  harmless  after 
performing  the  duties  required  of  him.  And  the  injunction 
enjoining  defendants  from  proceeding  against  him  for  their 
several  alleged  claims  will  be  made  perpetual.  After  such  a 
decree  the  plaintiff  cannot  participate  in  the  litigation  between 
defendants.^'  He  cannot  even  object  to  the  rulings  made  in 
the  case,  nor  take  part  in  the  argument  of  questions  involved 
between  the  defendants.* 

In  Earth  v.  Rosenfeld^  it  was  held  that  a  decree  of  inter- 
pleader is  interlocutory  and  subject  to  revision  and  correction. 
And  so  when  the  case  is  finally  determined  it  may  be  reviewed 
and  a  different  decree  made.  In  Walceman  v.  Kingsland  ^  it 
was  held:  "That  the  only  decree  which  can  be  made  in  a 
strict  interpleader  suit  in  favor  of  the  complainant  and  against 
the  defendants  is  that  the  complainant's  bill  was  properly  filed, 
o-iving  him  leave  to  bring  the  property  in  dispute  into  court, 
and  allowing  him  costs  out  of  the  property,  and  directing  the 
defendants  to  interplead  and  settle  the  conflicting  claims  which 
they  set  up  to  the  property  among  themselves.  From  the  nat- 
ure of  the  remedy  this  is  the  only  decree  which  it  is  possible 
for  the  court  to  make  in  favor  of  the  complainant." 

1  Wakeman  v.  Kingsland,  46  N.  J.  3  st.  Louis  Ins.  Ca  v.  Alliance,  etc. 
Eq.  113;  Newhall  v.  Kastens,  70  III.     Co.,  23  Minn.  7. 

156;  Bedell  v.  Huffman,  2  Paige  Ch.  •»  Provident  Sa v.  Inst.  v.  White,  115 

199;  Illingworth   v.  Rowe,  52  N.  J.  Mass.  112;  Andrews  v.  Halliday,  63 

Eq.  360.  Ga.  263. 

2  George  et  al.  v.  Pilcher,  28  Grat.  »  36  Md.  604. 

(Va.)  299,  305;  Newhall  v.  Kastens,  70        «46  N.  J.  Eq.  113, 116;  Richards  v. 
111.  156;  Story,  Eq.  PL,  sec.  297.  Salter,  6  Johns.  Ch.  445. 


^  3g3  -1  RECEIVERS.  ^^^ 

After  a  decree  of  interpleader  has  been  made,  the  court  hav- 
ino-  jurisdiction  of  the  cause  will  proceed  to  settle  all  the  con- 
troversies and  issues  involved  in  it,  and  will  therefore  hear  the 
proofs  and  determine  the  rights  of  the  several  defendants  and 
make  a  final  decree  determining  who  is  entitled  to  the  fund, 
property  or  thing  which  is  the  subject-matter  of  the  suit. 
^  In  Waheman  I  Kingsland  it  was  further  said:  ''The  case 
tendered  by  every  bill  of  interpleader  ought  to  be  such  that 
the  whole  of  the  rights  claimed  by  the  defendants  may  be  de- 
termined by  the  litigation  between  them,  and  that  the  plaintitt 
is  not  under  any  liabilities  to  either  of  the  defendants  beyond 
those  which  arise  from  the  title  of  the  property  m  contest  be- 
cause if  the  plaintiff  has  come  under  any  personal  obligation 
independently  of  the  question  of  property,  so  that  either  of 
the  defendants  may  recover  against  him  at  law,  without  estab- 
lishing a  right  to  the  property,  it  is  obvious  that  no  litigation 
between  the  defendants  can  ascertain  the  right  of  such  defend- 
ant as  against  the  plaintiff.    .     .     .     Such  a  case  undoubtedly 
would  not  be  a  case  for  interpleader." 

"Where  the  ri^^ht  of  one  defendant  is  admitted  by  the  an- 
swer of  the  other"^  or  the  bill  is  taken  as  confessed  as  to  one, 
the  court  settles  the  rights  of  the  parties  at  once,  and  makes 
a  final  decree  as  to  those  rights,  and  as  to  the  disposition  of 
the  fund  in  controversy.'"  And  in  such  case  the  plaintiff 
cannot  dispute  the  claim  of  the  other  defendant  who  has  inter- 
pleaded and  set  up  his  claim,  nor  can  he  object  to  the  decree 
in  his  favor.2 

Section  II.  Receivers. 
§  383.  Receivers -Nature  and  office  of,  in  equity  suits. 
The  appointment  of  receivers  belongs  to  the  first  class  of 
eqmtable  remedies.  Receivers  in  equity  may  be  said  to  be 
auxiliary  and  administrative  in  that  they  assist  the  court  in 
carrvinc  out  its  orders  and  decrees  in  the  suit  wherein  they 
are  appdnted;  and  protective  and  preventive  in  that  they 
collect  the  funds  and  property  of  the  parties,  protect  it  from 
fraudulent  and  wasteful  expenditure,  and  prevent  its  injury  or 

1  City  Bank  v.  Bangs,  2  Paige  Ch.  (N.  Y.)  570;  Michigan,  etc.  Co.  v.  White, 

44  Mich.  25. 

2  Cogswell  V.  Armstrong,  77  111.  139. 


624  KE0EIVER8.  [§  384. 

destruction.  The  receiver  is  called  "  the  hand  of  the  court," 
for  the  reason  that  the  court,  through  the  receiver,  administers 
and  executes  its  orders  and  decrees.  It  literally  lays  its  hand 
upon  the  funds  and  property  involved  in  the  controversy;  col- 
lects and  holds  it  for  such  distribution  and  disposal  as  justice 
and  equity  demands,  protecting  it  from  fraud,  incompetency 
and  mismanagement.  The  proceeding  is  a  harsh  one  in  that 
it  takes  the  possession,  management  and  control  of  the  busi- 
ness and  property  of  the  parties  from  them  and  places  it  in  the 
hands  of  another  who  holds  it  under  the  direction  of  the  court 
to  be  controlled,  managed  and  finally  distributed  as  the  court 
may  by  its  decree  direct. 

§  384.  A  definition  and  some  requisites. —  A  receiver  is  an 
indifferent  person  between  the  parties  to  the  cause,  appointed 
by  the  court  pending  the  suit  to  collect  and  preserve  the  prop- 
erty and  effects  of  the  parties  in  question  and  the  proceeds 
therefrom,  and  account  to  the  court  therefor  when  it  appears 
to  the  court  that  it  would  be  unjust  and  inequitable  that  either 
party  should  have  the  possession  and  control  thereof.  From 
this  definition  it  will  be  observed  that  there  are  certain  impor- 
tant requisites.  The  receiver  must  be  a  person  who  is  indiffer- 
ent between  the  parties  litigant  and  must  remain  so,  giving  to 
neither  party  favor  or  advantage.  In  executing  the  orders  of 
the  court  he  acts  as  and  for  the  court  and  should  be  as  un- 
biased as  the  court  itself.  He  can  only  be  appointed  pending 
the  suit;  until  the  suit  is  commenced  there  can  be  no  receiver, 
and  his  appointment  and  authority  terminates  with  the  cause, 
if  not  terminated  before  that  time  by  order  of  the  court.  His 
duties  are  to  collect  and  preserve  the  property  and  effects  of 
the  parties  that  are  in  litigation,  and  the  proceeds  therefrom, 
and  account  to  the  court  therefor.  He  is  an  executor  of  the 
court's  orders.  His  appointment  must  be  the  result  of  the 
court's  determination  that  it  would  be  unjust  and  inequitable  to 
leave  the  property  and  effects  of  the  parties,  the  subject  of  the 
litigation,  or  the  management  of  the  business^  in  the  possession 
and  control  of  either  part3^  Until  the  court  has  arrived  at 
this  conclusion  there  can  be  no  appointment.^ 

1  In  Booth  V.  Clark,  17  How.  (U.  S.)  allowed  to  him,  for  he  must  apply 
322,  331,  it  was  said:  "When  ap-  to  the  court  for  liberty  to  bring  or 
pointed,    very    little    discretion    is    defend  actions,  to  let  the  estate,  and 


5'^5 

^  gg^  -1  RECEIVERS. 

R  385.  Jurisdiction  to  appoint.- Tl:e  appointment  of  re- 
ceivers is  peeuliarlv  ^vithia  the  province  of  the  eqmty  court, 
amrexeepLs  provided  by  statute  it  is  the  only  court   hat  has 
u"tioa  to'appoint  receivers.     The  statutes  of  the  d.fferent 

:fs  as  well  asThe  statutes  of  the  Uni^d  States  ha       p, 
vided  for  appointment  of  receivers  pendmg  l.t.gat  on  to  de 
Iline  the  title  to  property  other  than  in  the  equ.ty  cou    s 
but  ordinarily  and  naturally  the  jurisdiction  belongs  to  the 

'^UBiZ^nn^^cJ.'  the  court  say:  "The  appointment 
of  a  receiver  is  one  of  the  prerogatives  of  a  court  of  equity,  ex- 
ercised in  aid  of  its  juris,r,ction,  in  order  to  enable  it  to  accom- 
plish, as  far  as  practicable,  complete  justice  between  he  par- 
ties l^efore  it.  From  the  very  nature  of  the  power  and  of  the 
'rrposes  for  which  it  may  be  invoked,  its  efficiency  depends, 
on  the  promptness  with  which  it  may  be  exercised. 

It  has  been  held  that  the  power  to  appoint  receivers  is  in- 
herent in  the  equity  court.=  It  is  said  that  "  the  order  of  ap- 
po  "ment  is  in  the  nature  not  of  an  attachment,  but  a  seques- 
tration- it  c^ives  in  itself  no  advantage  to  the  party  applying 
or  it  o'ver  other  claimants;  and  operates  prospectively  upon 
rents  and  profits  which  may  come  to  the  hands  of  tlae  receive  , 
as  a  lien  in  favor  of  those  interested,  according  to  their  rights 
and  priorities  in  or  to  the  principal  subject  out  of  which  those 

i„  „„rt  cases  to  lay  out  money  on    of  all  P"''-  .7^<|,  ™',;;„*:  Zy. 

repair,  and  he  may  without  .ea..    g-°-'  ^led  1 1,     b^^^^^^^^^^ 
distrain  oniy  for  «„t.narrea^:.hor      He  -PPO  m.ed    ^^^^^^^^^  ^^^^_^^  ^^ 

«rrc%8  9V:s.335.  jltiw.  thecau,.  The  money  in  his  hands 
Tsl  So^HfarElm?  I'ves.  Jr.  ISO.  is  in  cust^iaU^  ::\:'-Z;':. 
1  id  16.0;  Blunt  and  Clithero,  6  Ves.    make  out  a  title  to  it    M-^^^  '_ 

;fji: the-rit, ;-'t -  not  ;pp-rrri:r^;rnr.:' 
:::h:r';%thi.d\rit™ty:tt.sL.ant.,e^^^^^^^^^^ 

Prao.  Reg.  355.    He  is  an  officer  of  «,    nd.  m  SCO.  ^__^.^^ 

the  court;  his  appointment  is  pro-         ^^^-^.l^l.'      ,,, 
visional.    He  is  appointed  in  belmlf    v.  Butcher,  iS  Grat.  144. 


526  EEOEIVEKS.  [§  386. 

rents  and  profits  issue.  In  the  exercise  of  tliis  summary  juris- 
diction, a  court  of  equity  reverses,  in  a  great  measure,  its  or- 
dinary course  of  administering  justice;  beginning  at  tiae  end, 
and  levying  upon  the  property  a  Idnd  of  equitable  execution, 
by  which  it  makes  a  general,  instead  of  a  specific,  appropriation 
of  the  issues  and  profits,  and  afterwards  determining  who  is 
entitled  to  the  benefit  of  its  quasi  process."  ^ 

§386.  Must  be  in  pending  suit. —  It  is  a  general  rule  that 
a  receiver  cannot  be  appointed  except  in  a  pending  suit  in  a 
court  having  competent  jurisdiction.  The  appointment  of  a 
receiver  is  said  to  be  "one  of  the  modes  by  which  the  pre- 
ventive justice  of  a  court  of  equity  is  administered."  It  is  a 
proceeding  auxiliary  in  its  nature,  used  by  the  court  to  assist 
in  the  execution  of  its  orders;  and  so  the  appointment  is  made 
only  in  suits  brought  to  obtain  some  equitable  relief.  The  ap- 
pointment must  be  in  a  controvers}''  pending  between  adverse 
parties  and  involving  conflicting  claims.  And  where  it  ap- 
peared that  there  had  been  no  bill  filed,  and  no  case  was  pend- 
ino-  in  the  court,  it  was  held  that  a  receiver  should  not  have 
been  appointed;  the  court  holding  that  to  authorize  the  ap- 
pointment of  a  receiver  there  must  be  a  suit  pending,  and  an 
opposite  party,  to  warrant  the  appointment.^  The  property 
that  is  sought  to  be  placed  in  the  hands  of  a  receiver  must  be 
the  property  owned  or  controlled  by  a  party  to  the  suit,  that 
he  may  have  an  opportunity  of  resisting  the  appointment  and 
defending  his  property  against  what  might  result  in  great 
damage  to  his  interests.  And  so  it  has  been  generally  held 
that  it  must  appear  in  the  bill  of  complaint  filed  in  the  cause 
in  which  a  receiver  is  sought  that  the  complainant  is  reason- 
ably entitled  to  the  relief,  and  that  it  is  necessary  to  the  carry- 

1  Beverley  v.  Brooke,  4  Grat  (Va.)  tlie  orJer  appointing  a  receiver  was 
187,  208.  It  is  in  the  nature  of  an  void  for  the  reason  that  it  vras 
equitable  attachment.  Cincinnati,  made  when  there  was  no  suit  pend- 
etc.  R.  Co.  V.  Sloan,  37  Ohio  St.  1;  ing.  And  in  Jones  v.  Schall,  45  Mich. 
Albany  Citj' Bank  V.  Schermerhorn,  379,  380,  the  court  say:  "This  ap- 
9  Paige  Ch.  (N.  Y.)  377;  Davis  v.  pointment  of  a  receiver,  even  if  one 
Gray,  16  WalL  (U.  S.)  203.  could  have  been  appointed   at  any 

2  Whitehead  v.  Wooten,  43  Miss,  stage  of  the  case,  was  absolutely 
523:  Hardy  v.  McClellan,  53  Mich,  void,  as  the  bill  had  not  been  filed 
507.  In  Merchants',  etc.  Bank  v.  and  no  suit  commenced  at  the  time," 
Kent  Judge,  43  Mich.  292,  296,  held, 


§  387.]  EECEIVEKS.  527 

ing  out  of  the  relief  prayed  for,  and  to  avoid  irreparable  injury 
and  loss,  that  a  receiver  should  be  appointed. 

§387.  In  what  cases  appointed.  —  Xo  definite  fixed  rule 
can  be  laid  down  as  to  when  or  in  what  cases  the  court  will 
appoint  a  receiver.  This  can  only  be  determined  from  the 
nature  of  the  case  in  which  the  appointment  is  asked.  It  will 
be  remembered  that  the  appointment  of  a  receiver  is  not  the 
ultimate  object  of  the  litigation,  but  is  only  a  provisional 
remedy  used  by  the  court  to  control  and  preserve  the  property 
which  is  the  subject  of  the  suit,  in  such  a  manner  that  the 
relief  sought  for  and  finally  given  may  be  effected.  And  so 
the  court  will  look  to  the  case  made  by  the  bill  of  complaint 
to  determine  whether  the  case  is  one  to  warrant  the  appoint- 
ment. The  appointment  rests  in  the  sound  discretion  of  the 
court,  and  it  is  said  "in  exercising  its  discretion  the  court  pro- 
ceeds with  caution  and  is  governed  by  a  view  of  the  whole 
circumstances  of  the  case."  ^ 

The  remedy  is  a  harsh  one,  taking  from  the  pa-rty  in  posses- 
sion and  control  the  property  in  controversy  and  placing  it  in 
the  charge,  custody  and  control  of  the  court  through  the  re- 
ceiver appointed  by  it.  The  receiver  in  the  cause  is  not  ap- 
pointed for  the  plaintiff's  benefit  merely,  but  for  all  other  per- 
sons who  may  establish  rights  in  the  cause;  and  it  is  presumed 
that  the  court  would  exercise  a  wise  and  equitable  control, 
preserve  the  property  and  the  proceeds  of  it,  and  finally  dis- 
tribute or  deliver  it  to  the  parties  equitably  entitled  to  it.' 
Because  of  this  harsh  and  extraordinary  proceeding  the  au- 
thority to  appoint  receivers  should  be  used  with  great  cir- 
cumspection. By  taking  possession  of  the  property  there  is 
danger  in  some  cases  of  doing  irreparable  wrong  —  such  an 
injury  that  even  a  subsequent  restoration  of  the  property  may 
afford  no  adequate  compensation.  "An  injunction  and  re- 
ceiver are  resorted  to  in  any  case  only  to  preserve  property  in 
statu  quo  pending  a  contest." ' 

1  Kerr    on    Receivers,   3;    Skip  v.  176.     To  justify  the  appointment  of 

Harwood,  3  Atk.  564.  a  receiver  the  plaintiff  should  show 

^Gaynor  v.  Blewett,  82  Wis.  313;  at  least  a  probable  interest  in  the 

Rider  v.  Bagley,  84  N.  Y.  465;  Thorn-  property,  and  a  well-grounded  appre- 

ton  V.  Bank,  76  Va.  432.  hensiou  of  immediate  injury  to  such 

*Schlecht's  Appeal,  60  Pa.  St.  172,  interest,  unless  the  property  is  taken 


528  RECEIVEK8.  [§  387. 

In  Blondheim  v.  Moore^  the  court  has  laid  cIo\Yn  certain 
rules  which  should  be  observed  and  followed  in  the  appoint- 
ment of  receivers:  "1st.  That  the  power  of  appointment  is  a 
delicate  one,  and  to  be  exercised  with  great  circumspection. 
2d.  That  it  must  appear  the  claimant  has  a  title  to  the  prop- 
erty, and  the  court  must  be  satisfied  by  affidavit  that  a  receiver 
is  necessary  to  preserve  the  property.  3d.  That  there  is  no 
case  in  which  the  court  appoints  a  receiver  merely  because  the 
measure  can  do  no  harm.  4th.  That  '  fraud  or  imminent  dan- 
ger, if  the  intermediate  possession  should  not  be  taken  by  the 
court,  must  be  clearly  proved.'  And  5th.  That  unless  the  ne- 
cessity be  of  the  most  stringent  character,  the  court  will  not 
appoint  until  the  defendant  is  first  heard  in  response  to  the 
application." 

The  primary  reason  which  seems  to  underlie  every  case  where 
a  receiver  should  be  appointed  is  to  preserve  the  property  for 
the  parties  who  are  legally  and  equitably  entitled  to  it.  And 
so  it  has  been  said  "  that  only  a  few  general  principles  may  be 
regarded  as  established  according  to  which  the  power  ought 
to  be  exercised.  One  of  these  is,  that  a  receiver  ought  to  be 
appointed  only  '  to  prevent  fraud,  save  the  subject  of  litigation 
from  material  injury,  or  rescue  it  from  threatened  destruction.' 
Nor  should  it  be  done  then,  until  answer  to  a  bill  praying  it 
has  been  made  by  defendant,  '  unless  the  necessity  be  of  a  most 
stringent  character.'  "  "^ 

While  it  appears  to  be  a  requisite  that  the  plaintiff,  by  his 
bill,  should  show  that  he  has  a  title  to  the  property,  it  is  not 
necessar}'  that  it  should  conclusively  appear,  for  the  court  can- 
not determine  fully  that  fact  but  by  exhibits  and  affidavits  in 
support  of  the  bill,  and  by  the  bill  itself.  There  should  be  a 
strong  probability,  at  least,  that  the  title  of  the  property  is  in 
the  plaintiff,  and  the  averments  must  not  be  uncertain  or  in- 
consistent in  this  respect,  and  the  allegations  of  danger  or  peril 
to  the  property  must  be  sufficiently  certain  to  justify  the  court 
in  adopting  this  harsh  procedure. 

"  If  it  appears  to  the  court  that  the  plaintiff  has  established 
a  good  prima  facie  equitable  title,  and  that  the  property,  the 

charge  of  by  the  court.     Lancaster        ^  1 1  Md.  365,  374. 

V.  Asheville,  etc.  Ry.  Co.,  90  Fed.  129;        2  Briarfield,  etc.  Co.  v.  Foster,  54 

Schack  V.  McKey,  97  111.  App.  460.        Ala.  622,  634. 


ff  388.1  RECEIVERS.  ^29 

subject  of  the  suit,  is  in  dnnger  if  left  in  the  possession  of  the 
party  against  whom  the  receiver  is  prayed  until  the  hearing, 
or  at  least  that  there  is  reason  to  apprehend  that  the  plaintiff 
will  be  in  a  worse  situation  if  the  appointment  of  a  receiver  be 
delayed,  the  appointment  is  almost  a  matter  of  course.  If 
there  is  no  danger  to  the  property,  and  no  fact  is  in  evidence 
to  show  the  necessity  or  expediency  of  appointing  a  receiver, 
a  receiver  will  not  be  appointed  unless  there  be  some  other 
equity  in  the  case  to  support  the  application."'  In  deter- 
mining the  motion  for  appointing  a  receiver,  however,  the 
court  does  not  decide  what  its  determination  may  be  upon  the 
hearini,^  of  the  cause,  for  it  only  expresses  its  opinion  so  far  as 
it  is  necessary  to  deal  with  the  interlocutory  proceeding  and 
the  result  at  the  hearing  may  be  different.^ 

§  8S8.  Some  special  cases.— It  would  be  difficult  to  name  or 
classify  the  very  many  cases  in  which  the  equity  court  would 
exercise  its  power  of  appointing  a  receiver,  and  we  can  only 
notice  a  few  special  cases  and  the  reasons  for  the  exercise  of 

the  remedy. 

Partnership  cases.  It  is  frequently  invoked  in  partnership 
cases.  In  these  cases  the  court  is  called  upon  to  exercise  a 
very  careful  and  judicial  discretion,  for  often  the  remedy  is 
invoked  where  one  or  more  of  the  partners  do  not  desire  a 
winding  up  of  the  business;  or  perhaps  where  to  dissolve  the 

1  Kerr  on  Receivers,  &  from    the    establishe-i    practice    of 

«In  Pascault  v.  Cochran.  84  Fed.  courts  of  equity.    Tlie  purpose  for 

358.  307,  the  court  say:  "Such  a  re-  which  a  receiver  takes  poss  ssion  is 

ceiver  is  uniformly  regarded  as  the  closely  allied  to  that  of  a  sheriff  in 

offi.er  of   the   court,  exercising  his  levying  under  execution,  except  tliat 

functions  in   the  interest  of  neither  the  scope  of  the  receiver's  authority 

plaintiff  nor  defendant,  but  for  the  is  more   compreliensive,  since  he  is 

common  benefit  of  all  parties  in  in-  usually  required  to  pay  all  demands 

terest    Being  an  officer  of  the  court,  upon  the  fund  in  his  hands  to  the  ex- 

the  funti  or  property  intrusted  to  his  tent  of  tliat  fund.     And  it  has  been 

care  is  re-arded  as  being  in  custodia  held  that  the  appointment  of  a  re- 

legis.  for  the  benefit  of  whoever  may  ceiver  is,  in  effect,  an  equitable  ex- 

evenlually    establish    title    thereto;  ecution.      It   does   not    chan-^e    the 

the  court  itself  having  the  care  of  title  to,  or  create  any  lien,  upon  the 

the  property  by  its  receiver,  wlio  is  property,  and  ordinarily  gives  noad- 

merely  its  creature  or  officer,  having  vanta  e  or  priority  to  the  person  at 

no  powers    other   than    those    con-  wliose  instance  the  appointment  is 

ferred  upon  him  by  the  order  of  his  made  over  other  parties  in  interest" 
appointment,  or  such  as  are  derived 
84 


530  RECEIVERS.  [§  38& 

relation  and  wind  up  its  affairs  would  be  of  great  damage,  if 
not  irreparable  injury,  to  one  or  more  of  the  partners.  And 
so  it  is  generally  conceded  that  the  bill  filed  must  seek  a  dis- 
solution of  the  )»artnership,  and  that  it  must  satisfactorily  ap- 
pear that  the  complainant  would  be  entitled  to  such  a  decree; 
for  it  is  said  that  in  such  cases  the  same  reasons  tluit  would 
justify  a  decree  for  a  dissolution  would  justify  a  decree  for  the 
appointment  of  a  receiver;  lor  if  the  plaintiflf  is  entitled  to  a 
dissolution,  it  would  hardly  be  justice  to  leave  the  defendant 
at  liberty  to  go  on  with  the  partnership  business  to  the  preju- 
dice and  loss  of  the  plaintiff.  But  a  mere  disagreement  be- 
tween the  partners  as  to  how  the  business  shall  be  conducted 
will  not  be  sufficient.' 

\n  Sloa7i  V.  Moore  ^  the  court  said:  "It  is  difficult  to  see 
how  the  necessity  of  a  receiver  can  be  avoided  on  the  dissolu- 
tion of  a  partnership  when  the  parties  cannot  agree  as  to  the 
disposition  of  the  joint  effects,  for  no  one  has  a  right  to  their 
possession  and  control  superior  to  that  of  the  other."  And  in 
Law  V.  Ford '  the  court  say :  "  Where  either  party  had  a  right 
to  dissolve  the  partnership,  and  the  agreement  between  the 
parties  made  no  provision  for  closing  up  the  concern,  it  was 
of  course  to  appoint  a  manager  or  receiver,  on  a  bill  tiled  for 
that  purpose,  if  they  could  not  arrange  the  matter  between 
themselves." 

Each  partner  is  entitled  to  his  full  share  and  management 
of  the  business,  and  so  when  he  is  excluded  from  access  to  the 
books  and  papers  of  the  concern  and  from  a  part  in  the  man- 
agement of  the  business,  it  would  be  sufficient  ground  for  the 
appointment  of  a  receiver.'*  And  so  a  receiver  may  be  ap- 
pointed after  the  partnership  is  dissolved  to  wind  up  the  af- 
fairs of  the  concern.     But  only  where  the  property  or  some  of 

iNewv.  Wright,  44  Miss. 202;  Henn  9  Kan.  435.    And  where  it  appeared 

V.  Walsh,   2   Edw.    Ch.    (N.  Y.)  i:!0;  from   the   pleadings  and    affidavits 

Waring  V.  Robinson.  Hoff.  Ch.  (N.  Y.)  that  several   mortgagees  and    unse- 

524;    Garretson  v.  Weaver,  3  Edw,  cured  creditors  were  interested,  and 

Ch.  (N.  Y.)  885;  Barnes  v.  Jones,  91  that  the  partners  themselves  could 

Ind.  161.  not  agree,  it  was  held  on  application 

-^  37  Pa,  St.  217.  of  the   defendants    that  a   receiver 

3  2  Paige  Ch.  (N,  Y.)  310.  might  be  properly  appointed.    Rolfe 

4Katz  V.  Brewington,  71  Md.  79,  v.  Burnham,  110  Mich.  660. 

20  Atl.  139:  Rottenstein  v.  Conrad, 


§  o88.J  KECEIVEK3.  531 

the  partners  are  in  danger  of  being  injured  —  as  where  disso- 
lution has  taken  place,  or  one  of  the  partners  acts  against  the 
interest  of  the  others,  or  carries  on  trade  with  the  partnership 
funds  on  his  own  account,  or  in  any  other  matter  excludes  his 
copartners  from  that  share  to  which  they  are  entitled  in  wind- 
ing up  the  concern, —  will  equity  exercise  its  power  in  the  ap- 
pointment of  a  receiver,  for  in  such  a  case  it  is  but  a  provident 
exercise  of  equity  power  to  place  the  proceeds  of  the  partner- 
ship under  the  care  of  the  court,^ 

The  bill  of  complaint  should  contain  a  prayer  for  the  dissolu- 
tion of  the  partnership,  otherwise  it  might  be  held  that  there  was 
no  pending  suit  in  which  a  receiver  could  be  appointed.'^ 

Foreclosure  suits.  This  power  is  often  invoked  in  cases  for 
the  foreclosure  of  mortgages,  and  especially  against  corpora- 
tions operating  railroads.  Where  it  appeared  that  the  mort- 
gagor was  insolvent  and  had  left  the  premises  and  given  pos- 
session to  another  who  was  occupying  it  on  his  own  account 
and  without  paying  rent,  and  it  appeared  that  the  mortgagor 
had  committed  waste  and  threatened  to  commit  more,  and  that 
the  premises  were  an  insufficient  security,  it  was  held  that  the 
court  might  appoint  a  receiver.'  The  remedy,  however,  is 
more  often  invoked  in  cases  of  foreclosure  of  mortgages  against 
railroad  companies  where  the  courts  have  frequently  held  that 
a  receiver  may  be  appointed,  where  the  exigencies  warrant  it, 
to  take  possession  of  the  property,  control  and  manage  it  under 
the  direction  of  the  court.  It  is  said  that  "it  is  a  part  of  that 
jurisdiction,  always  exercised  by  the  court,  by  which  it  is  its 
duty  to  protect  and  preserve  the  trust  funds  in  its  hands.  It 
is,  undoubtedly,  a  power  to  be  exercised  with  great  caution; 

I  Speights  V.  Peters.  9  Gill  (Md.),  duce  the  conclusion  that  they  had 
479;  McMahon  v.  McClernan.  10  W.  been,  or  were  likely  to  be.  untrue  to 
Va.  419;  Smith  v.  Fitchett,  63  Hun  the  trust  reposed  in  them,  the  court 
(N.  Y.),  473.  Where  upon  the  disso-  held  that  it  was  a  suflficient  case  for 
lution  of  a  partnership  its  members  the  appointment  of  a  receiver.  Cod- 
formed  new  firms  under  agreement  dington  v.  Tappan,  26  N.  J.  Eq.  141. 
to  apply  the  partnership  assets  in  ^Pirtle  v.  Penn,  3  Dana  (Ky.),  247. 
their  hands  to  the  payment  of  the  28  Am.  Dec.  70.  As  to  the  suflB- 
debts  of  the  o  dpirtnership,  and  one  cienoy  of  the  prayer,  however,  see 
of  the  firms  converted  it  to  their  own  Jordan  v.  Miller,  75  Va.  442. 
use,  or  misappropriated  such  assets,  '  Brasted  v.  Sutton,  30  N.  J.  Eq.  46i; 
and  their  conduct  was  such  as  to  in-  Merritt  et  al.  v.  Gibson,  129  Ind.  155. 


532  RECEIVERS.  [§  388. 

and,  if  possible,  with  the  consent  or  acquiescence  of  the  parties 
interested  in  the  funds."' 

Receivers  in  aid  of  creditors.  One  of  the  s[)ecial  reasons  that 
induces  an  equity  court  to  assume  jurisdiction  is  to  expose 
fraud  and  threatened  injury,  or  inequitable  advantage  and 
benefit  on  account  of  it.  And  so  where  the  legal  remedies 
have  been  exhausted,  and  are  inadecjuate  to  furnish  relief  for 
the  reason  that  the  debtor  has  fraudulently  withdrawn  his 
property  beyond  the  reach  of  legal  process,  a  bill  in  equity, 
known  as  a  creditor's  bill,  may  be  maintained  to  enable  the 
creditor  to  reach  an  equitable  fund  or  his  choses  in  action.* 
By  means  of  it  the  fraud  may  be  exposed,  the  property  and 
assets  discovered  and  subjected  to  the  payment  of  the  debts  of 
tl)e  creditor  invoking  the  remedy.  This  remedy,  however, 
cannot  be  maintained  by  a  mere  general  creditor,  for  the  rea- 
son that  the  remedy  at  law  must  first  be  exhausted  before  the 
court  of  equity  will  assume  jurisdiction:  and  so  the  creditor 
who  would  invoke  the  remedy  must  first  obtain  a  judgment  in 
the  law  court  upon  his  claim,  issue  an  execution  upon  tlie  judg- 
ment obtained,  which  execution  must  be  returned  iinlia  h<)7,a. 
The  return  of  the  execution  nulla  bona  is  proof  to  the  court 
that  the  legal  remedy  has  been  exhausted.' 

1  Wallace  v.  Loomis.  97  U.  &  146;  Swift,  Harr.  Ch.  (Mich.)  430;  Will- 
Union  Trust  Co.  V.  Illinois,  etc.  Co.,  iams  v.  Hubbard.  Walk.  Ch.  (Mii  h.) 
117  U.  S.  4^4;  Quincy.  etc  Co.  v.  28;  hoper  v.  MoC'ook,  7  Ala.31«;  Bal- 
Humphreys.  145  U.  S.  82:  Vermont,  lentiiie  v.  Beall,  3  Scam.  (111.)  203; 
etc.  Hy.  Co.  v.  Vermont  Cent.  Ry.  Scolt  v.  Wallace,  4  J.  J.  Marsh.  iKy.) 
Co..  oO  Vt.  500.  The  appointment  of  654;  West  v.  McCarty,  4  Blackf. 
a  receiver  is  generally  within  the  (Ind.)  244;  Sup'ee  v.  CallaRhan.  200 
sound  discretion  of  tlie  court,  but  it  Pa.  St.  146.  49  Atl.  950.  where  it  was 
is  a  power  only  to  be  exercised  in  held  that  the  remedy  at  law  had  not 
strong  cases;  and  in  no  case  of  a  been  exiiausted;  Beach  v.  White. 
ni(.rt::;a};e  ought  a  receiver  to  be  ap-  Walk.  Ch.  (Mich.)  495;  McCuloujrh 
pointed  il  it  IS  dear  that  on  a  fore-  v.  Day.  45  Mich.  554;  Tarbell  v.  Mil- 
clo■^ure  tiie  mortgaged  property  will  lard.  6;^  Mich.  250.  In  People's  Nat. 
l.riiig  enough  money  to  jay  the  debt,  Bank  v.  Kern,  193  Pa.  St.  59,  4  1  Atl. 
interest  and  costs.  Pullan  v.  Cincin-  :531.  it  was  held  that  a  creditor's  bill 
nati.  etc.  Hy.  Co.,  4  Biss.  (U.  S.)  35.  would  not  lie  where  property  was 

2Tappan   v.  Evans.   1 1   N.  H.  331;  fraudulently    conNeyed   to   another 

Gordon  v.  Lowell.  21  Ma  257.  -  where  there  was  adequate  remedy 

3  McCoy    V.   Fire   Ins.  Ca,  87   Mo.  at  law  by  levy  and  sale  in  ca.se  of 

App.  73;  Moore  V.  Omaha  Life  Ass'n,  real   estate   and  by   attachment   in 

62  Neb.  497.  87  N.  W.  321;  Thayer  v.  case  of  personal  property.     Birming- 


388.] 


KEOEIVEES. 


533 


Upon  assuming  jurisdiction  of  the  cause,  the  court  of  equity 
will  take  measures  to  preserve  and  protect  the  property  and 
equitable  rights  of  the  defendants  shown  by  the  bill  of  com- 
plaint to  exist,  and  to  this  end  will  generally  issue  its  writ  of 
injunction  enjoining  its  transfer  or  further  incumbrance,  and 
will  appoint  a  receiver  to  collect  and  report  any  property,  legal 
or  equitable  rights,  that  the  court  may  by  its  decree  subject 
them  to  the  satisfaction  of  the  creditors'  claims.  The  equit}' 
court  further  assumes  that  one  who  fraudulently  holds  the 
property,  choses  in  action  or  legal  assets  of  the  debtor,  to  keep 
them  beyond  the  reach  of  his  creditors,  is  in  equity  a  trustee  for 
the  benefit  of  the  creditors  and  liable  for  all  the  property  in 
his  hands.  The  principle  that  a  receiver  in  such  cases  will  be 
appointed  seems  to  have  been  recognized  by  the  chancery  court 
at  an  early  period.  It  was  said  by  Lord  Eldon  in  Curling  v. 
Townshend^  to  have  been  long  settled  that  when  a  judgment 


ham  Shoe  Co.  v.  Torrey,  121  Ala.  89; 
Ernest  v.  Merritt,  107  Ga.  61;  Hale 

V.  White.  47  V'.  Va.  700,  35  S.  E.  884. 
In  Albany  City  Bank  v.  Dorr,  Walk. 
Ch.  (Mich.)  ;il7.  324.  it  was  held  that 
"the  return  o(  an  execution  is  conclu- 
sive between  the  parties,  when  good 
upon  its  fnce,  unless  it  has  been  made 
by  collusion  between  the  creditor  and 
officer,  or  by  direction  of  the  former. 
There  would  be  no  end  to  litigation 
in  this  class  of  cases  if  this  court 
■would  go  behind  the  officer's  return." 
119  Ves.  628.  "By  the  ancient 
practice  of  the  court  of  chancery  in 
England  a  receiver  was  not  appointed 
until  after  the  coming  in  of  the  de- 
fendant's answer.  This  practice, 
however,  seems  to  have  been  broken 
in  upon  by  Lord  Apsley,  in  the  case 
of  Cronipton  v.  Bearcroft,  in  1773, 
and  by  Lord  Kenyon  in  Vann  v. 
Bennett,  in  1787.  2  Brown's  Cases, 
157,  where  appointment  was  made 
prior  to  the  coming  in  of  the  an- 
swer.'' In  discussing  this  the  chan- 
cellor, in  Bloodgood  v.  Clark,  4  Paige 
Ch.  (N.  Y.)  574,  577,  said:  "It  now 
appears  to  be  well  settled,  both  here 


and  in  England,  that  a  receiver  may 
be  appointed  before  answer,  j)ro- 
vided  the  complainant  can  satisfy 
the  court  that  he  has  an  equitable 
claim  to  the  property  in  controversy, 
and  that  a  receiver  is  necessary  to 
preserve  the  same  from  loss,  in  these 
cases  of  creditors'  bills,  where  the 
return  of  the  execution  un.satisfied 
presupposes  that  the  property  of  the 
defendant,  if  any  he  has,  will  be 
misapplied,  and  entities  the  com- 
plainant to  an  injunction  in  the  first 
instance,  it  seems  to  be  almost  a 
matter  of  course  to  appoint  a  receiver 
to  collect  and  preser\e  the  property 
pending  the  litigation.  And  where 
the  sworn  bill  of  the  com|>Iainant 
shows  that  he  has  an  eq'iitable  right 
to  all  the  funds  and  property  of  the 
defendant,  to  satisfy  his  debt,  if  the 
right  of  the  com[>lainant  is  not 
denied  l^y  the  defendant,  in  answer 
to  the  application  for  a  receiver, 
there  can  be  no  good  reason  why  the 
complainant  should  not  have  a  re- 
ceiver appointed  to  preserve  the 
property  from  waste  or  loss,  indeed, 
this  court  has  already  declared  that 


534-  BEOEIVERS.  [§  388, 

creditor  took  out  execution,  and  found  the  estate  of  his  debtor 
protected  by  circumstances  respecting  a  prior  title,  he  mi^^ht 
apply  for  a  receiver,  and  that  the  fact  that  the  creditor  could 
not  execute  his  judgment  at  law  would  entitle  him  to  a  re- 
ceiver of  the  debtor's  estate.  It  may  be  said  to  be  almost  a 
matter  of  course  that  a  receiver,  for  the  preservation  of  the 
debtor's  property  pending  the  litigation,  will  be  appointed  on 
a  creditor's  bill  after  return  of  execution  unsatisfied.' 

It  has  been  held  to  be  "  the  duty  of  the  complainants  in  a 
creditor's  bill,  after  obtaining  an  injunction  restraining  the 
disposition  by  the  defendant  of  his  property  or  the  collection 
of  his  debts,  to  apply  to  the  court  early,  and  obtain  the 
appointment  of  a  receiver,  or  to  make  some  other  provision  for 
the  collection  of  the  debts  and  the  preservation  of  the  prop- 
erty." This  was  held  upon  the  theory  tliat  "  it  is  but  reason- 
able; the  injunction  restrains  the  defendant  from  the  collec- 
tion of  his  debts,  and  from  the  disposition  of  his  propt^rty.  It 
does  not  vest  in  the  complainant  the  right  to  do  either;  con- 
sequently, in  a  long  litigation,  the  debts  may  become  worth- 
less, and  the  property  be  sacrified,  unless  some  mode  is  adopted 
to  secure  it  for  the  benefit  of  the  prevailing  party  in  the  liti- 
gation. The  appointment  of  the  receiver  is  the  ordinary  mode, 
and  a  convenient  one."  ^  Provision  for  the  appointment  of  re- 
ceivers under  the  codes  adopted  by  the  several  states  are  based 
upon  the  same  theory  and  have  taken  the  place  of  the  former 
creditor's  bill. 

Receivers  over  corporations.  The  appointment  of  a  receiver 
of  a  corporation  would,  from  the  very  nature  of  the  proceed- 
ing, take  the  management  of  the  affairs  of  the  company  from 
its  officers  and  intrust  it  to  another —  the  receiver.  The  equity 
court  will  usually  refuse  to  exercise  its  jurisdiction  to  that  extent 
upon  the  application  of  either  creditors  or  stockholders,  except 
in  obedience  to  statutory  provisions;  nor  will  it  dissolve  an  in- 
corporation or  wind  up  its  affairs  upon  the  application  of  credit- 
it  is  the  duty  of  a  complainant,  who  ceiver  appointed  without  unreason- 
has   obtained   an   injunction,    upon     able  delay." 

Buch  a  bill,  restraininK  the  defend-  i  Fitzburgh  v.Everingham,  6Paige 
ant  from  collectin„;  his  debts,  ordis-     Ch.  (N.  Y.)  29. 

posing  of  property  which  mii^ht  be  2  Bankof  Monroe  v.  Schermerhorn, 
liable  to  waste  or  deterioration,  to  Clarke's  Ch.  iN.  Y.)  147;  Osborn  v. 
apply  to  the  court  and  have  a  re-     Heyer,  2  Paige  Ch.  (N.  Y.)  342l 


g  388.]  EECEIVKRS.  535' 

ors  or  stockholders.'  Statutory  provisions  have,  however,  been 
enacted  extending  the  jurisdiction  of  the  equity  court  to  the  ap- 
pointment of  receivers  in  certain  cases  where  it  seems  necessary 
for  the  protection  of  the  property  and  the  equitable  adjustment 
of  the  affairs  of  the  company ;  and  the  courts  in  construing  these 
statutes,  having  in  mind  the  severity  of  the  proceedings  which 
take  the  management  and  control  of  the  corporation  from  the 
officers  selected  by  its  stockholders,  will  exercise  a  careful  con- 
sideration and  give  them  strict  construction.  It  has  been  held 
that  proof  of  usurpation,  ultra  vires,  fraud  or  gross  negligence 
on  the  part  of  the  directors  will  alone  justify  a  court  in  ap- 
pointing a  receiver  for  a  solvent  corporation  at  the  suit  of  a 
stock  holder.^  But  where  all  charges  of  fraud  and  raismanage- 
ment,  and  all  allegations  which  would  authorize  the  appoint- 
ment of  a  receiver,  are  denied,  the  court  will  not,  on  a  prelim- 
inary application  by  the  bondholder,  appoint  a  receiver,  but 
will  po-tpone  action  until  evidence  can  be  produced.' 

Where  it  appeared  in  the  application  for  a  receiver  of  a 
corporation  that  a  judgment  had  been  obtained  against  it,  an 
execution  returned  nulla  hona  that  the  defendant  was  fraud- 
ulently diverting  its  assets,  and  that  there  were  unpaid  sub- 
scriptions to  the  capital  stock  of  the  company  remaining  due 
from  its  owners  and  managers;  that  the  defendant's  indebted- 
ness was  largely  in  excess  of  its  assets,  and  that  its  owners  and 
managers  were  disposing  of  the  assets  on  hand  for  their  own 
benefit  and  resorting  to  various  schemes  to  defeat  the  credit- 

Mn   Barber  v.  International,  etc  Groveland  Co.,  20  Wash.  169,  54  Pac. 

Co.,  73  Conn.  587,48  Atl.  758,  it  was  ll:i8;   Weatberly  v.   Water   Co.,   115 

held  tliat  in  tl.e  absence  of  statutory  Ala.  150. 

provisions  a  court  of  equity  will  not        'Brady  v.  Bay  State  Gas  Co.,  106 

appoint  a  receiver  of  a  corporation  Fed.  584;  Arents  v.  Blackweil,   etc. 

unless    the   same    relief    would    be  Co.,    101    Fed.  338.     In   D.  A.  Tomp- 

granted  against  any  unincorporated  kins  Co.  v.  Catawba   Mills,  82   Fed. 

association  or  natural  person,  since  780,  it  was  held  that  the  existence 

one  is  only  appointed  as  a  necessary  of    deep-seated    dissensions,     whicli 

measure  to  the  enforcement  of  some  could  not  be  reconciled,  in  the  board 

recognized  equitable  rij^ht.    High  on  of  directors  would   warrant  the  aj- 

Receivers,  t^  288,  and  cases  cited.  pointment    of    a    receiver,     though 

2  Grilling  v.  Griffing  Iron  Co.,  96  insufficiency  is  not  denied.      Powers 

Fed.  577;   North  American,  etc.  Co.  v.    Blue   Grass   Ass'n,  86    Fed.    705; 

V.  Watkins,  48  C.  C.  A.  254,  1U9  Fed.  Young  v,  Rutan.   69    111.    App.   513; 

101;  Trust,  eta  Ca  v.  S|>artanburg,  Sternberg  v.  Wolff  (N.  J.  Eq.,  1898), 

eta    Co.,   91   Fed.    324;    Cameron  v.  39  L.  R.  A.  763. 


536  RECEIVERS.  [§  389 

ors,  it  was  held  that  a  receiver  should  be  appointed.'  And  so 
it  may  be  generally  said  tliat  the  appointment  of  a  receiver  in 
cases  of  a  corporation,  even  though  the  proceedings  rest  in  the 
provisions  of  statutes,  depends  upon  fraudulent  conduct  and 
proceedings  of  those  in  the  management  and  control  of  the 
com|>any.^ 

§  389.  Keceivers  over  real  property. —  A  receWer pe7)dente 
lite  will  in  some  cases  be  appointed  to  collect  and  preserve  the 
rents,  issues  and  profits  of  real  estate,  but  in  no  way  will  this 
affect  the  title  of  either  party  to  the  litigation.  The  courts  are 
exceedingly  adverse  to  any  interference  with  the  possession  of 
real  estate  against  one  claiming  the  legal  title.  In  such  cases 
the  plaintiff  must  show  that  the  emergency  is  great;  that  great 
and  irreparable  injury  would  be  the  result  if  denied.  And  it 
may  be  generally  said  that  the  court  will  refuse  to  deprive  one 
of  his  possession  by  appointing  a  receiver  unless  it  clearly  ap- 
pears that  great  loss  will  result  to  the  plaintiff,  and  that  there 
is  no  adequate  legal  remedy  because  of  the  insolvency  of  the 
defendant,  or  for  some  other  reason.  Unless  such  exiirencies 
appear  the  court  will  refuse  the  appointment  until  the  plaintiff 
has  established  such  title  at  law. 

''The  rule  seems  to  be  universal  in  this  country  and  in  Eng- 
land, that  whenever  the  contest  is  simply  a  question  of  dis- 
puted title  to  the  property,  the  plaintiff  asserting  a  legal  title 
in  himself  against  a  defendant  in  possession,  and  receiving  the 
rents  and  profits  under  a  claim  of  legal  title,  equity  refuses  to 

iM.  V.  Monarch  Ca  v.  Bank,  106  it  did  not  appear  that  the  corpora- 
Ky.  'J06,  44  S.  W.  giS.  In  Runiney  v.  tion  or  tlie  managing  stockholder 
Detroit,  etc.  Co.,  116  Mich.  640,  74  N.  was  involved,  or  that  the  latter  had 
W.  1043.  it  was  held  that  the  ap-  converted  any  of  the  corporate  [irop- 
pointment  of  a  receiver  should  not  erty  to  his  own  use.  Sheridan  Brick 
be  made  on  the  grounds  that  an-  Works  v.  Marion  Trust  Co.,  157  Ind. 
other  stockholder  had  obtained  full  292,  61  N.  K  666. 
management  of  the  corporation;  2 People's  Inv.  Ca  v.  Crawford 
that  there  had  been  no  meetings  (Tex.  Civ.  A  pp..  1898),  45  &  W.  73a 
of  the  stockholders,  no  reports  of  It  was  held  that  a  receiver  of  a  cor- 
the  condition  of  the  company,  no  poration  should  not  be  appointed  ex- 
dividends  declared  except  when  cept  upon  a  clear  showing  that  the 
threatened  with  proceedings  for  a  applicant's  rights  imperatively  de- 
receiver,  and  then  the  share  of  the  mand  it;  that  he  has  no  other  ade- 
applicant  withheld;  but  no  other  quate  remedy  and  is  in  danger  of 
stockholders  were  shown  to  be  dis-  suffering  irreparable  loss.  Oakley  v. 
satisfied  with  the  management,  and  Paterson,  1  Green  (N.  J.),  173. 


S  390.1  BECEIVEKS.  ^3' 

lend  its  extraordinary  aid  by  interposing  a  receiver,  just  as  it 
refuses  an  injunction  under  simibir  circumstances,  leaving  the 
plaintiff  to  assert  his  title  in  the  ordinary  forms  of  procedure 

at  law."  ^ 

It  has  been  held  that  "courts  will  not  appoint  a  receiver  ex- 
cept when  it  is  necessary  either  to  prevent  fraud,  protect  prop- 
erty from   injury  or  preserve  it  from  destruction,  and  mere 
allegations  of  these  facts  are  not  sufficient  to  authorize  a  court 
to  appoint  a  receiver."  ^     The  general   rule  seems  to   be  that 
two  conditions  must  combine  to  warrant  a  court  of  equity  in 
granting   a   receiver   as   against  a   defendant   in    possession. 
"These  conditions  are,  first,  that  plaintiff  must  show  a  strong 
ground  of  title,  with  a  reasonable  probability  that  he  will  ulti- 
mately prevail;  and  second,  that  there  is  imminent  danger  to 
the  property,  or  to  its  rents  and  profits,  unless  the  court  shall 
interpose."'     But  the  rule  is  somewhat  relaxed  in  cases  of  a 
purely  equitable  nature;  as,  for  example,  where  the  defendant 
has  by  fraud  and  undue  influence  obtained  a  conveyance  of  the 
real  estate,  and  a  bdl  is  filed  to  set  it  aside,  and  there  is  a 
strong  probability  that  the  plaintiff  will  succeed,  and  especially 
where  this  appears  to  the  court   from  both  the  bill  and  the 
answer.     Many  other  cases  in  which  the  court  will  appoint  re- 
ceivers might  be  mentioned;  as,  for  example,  cases  of  trust; 
the  protection  of  estates  of  infants  and  lunatics  under  certain 
circumstances.     But  enough  has  been  said  to  fully  illustrate 
the  principles  which  underlie  and  support  the  proceeding. 

§  3<H).  The  application  for  appointment.— The  application 
for  the  appointment  of  a  receiver  may  be  made  ex  parte  upon 
the  bill,  or  the  bill  and  affidavits;  by  petition  after  the  bill  is 

1  Rollins  V.  Henry,  77  N.  C.  467;  be  so  circumstanced  as  to  induce  the 
Sengleldrr  v.  Hill,  16  Wash.  355;  3  court  to  grant  it.  That  two  things 
Pom  Eq.  Jur.  (2d  ed.)  1333;  High  on  were  necessary:  first,  to  show  strong 
Receivers  (3d  ed.).  sec.  553.  grounds  of  title;  second,  tiiat  there 

2  Brundage  v.  Home,  etc.  Ass'n,  11  is  danger  of  the  rents  being  lost.  In 
Wash.  277,  287,  39  Pac.  666.  Freer  v.  Davis  (W.  Va.,  1903).  43  S.  R 

3  Higli  O.I  Receivers,  sec.  55S,  citing  172,  it  was  held  that  where  hostile 
Mordaunt  v.  Hooper,  Arab.  (Eng.)  titles  to  land  are  involved  in  the  suit 
311,  where  Lord  Hardwicke  states  on  a  receiver  will  not  be  api)Ointed  un- 
motion  for  a  receiver  that  such  a  less  under  special  circumstances  re- 
motion  was  very  uncommon  vx  here  quiring  it  to  preserve  the  property 
the  matters  in  dispute  depended  on  from  loss. 

a  mere  legal  title.     But  a  case  may 


538  REOKIVKRS.  [§  3^*^ 

filed  and  defendant  served  with  process  to  appearand  answer, 
after  the  answer  or  at  the  hearing,  or  by  nn  order  obtained  to 
show  cause  why  a  receiver  should  not  be  appointed. 

Ex  parte  application.  The  appointment  ot  a  receiver,  as  we 
have  seen,  is  an  extremely  harsh  proceeding,  and  the  court 
will  demand  the  very  best  of  reasons  before  granting  an  order 
that  will  take  the  possession  and  control  of  the  defendant's 
property  and  effects  from  him  and  place  them  in  the  hands  of 
another.  And  so  a  receiver  will  not  be  appointed  ex  parte  ex- 
cept in  cases  of  very  great  emergency,  demanding  immediate 
action  for  the  prevention  of  irreparable  injury,  and  where  to 
defer  it  until  the  defendant  could  be  notified  would  result  in 
great  and  irreparable  damage  to  the  plaintiff.  The  exigencies 
of  the  case  must  fully  appear  by  the  allegations  in  the  bill  of 
complaint  and  by  other  satisfactory  proof. 

It  has  been  said  that  "  by  the  settled  practice  of  the  court 
in  ordinary  suits,  a  receiver  cannot  be  appointed  ex  parte,  be- 
fore the  defendant  has  had  an  opportunity  to  be  heard  in  re- 
lation to  his  rights,  except  in  those  cases  where  he  is  out  of  the 
jurisdiction  of  the  court,  or  cannot  be  found;  or  where  for 
some  other  reason  it  becomes  absolutely  necessary  for  the 
court  to  interfere,  before  there  is  time  to  give  notice  to  the 
opposite  party,  to  prevent  the  destruction  or  loss  of  property. 
Formerly  it  was  never  done  until  after  answer.  In  every  case 
where  the  court  is  asked  to  deprive  the  defendant  of  the  pos- 
session of  his  property  without  a  hearing,  or  an  opportunity  to 
oppose  the  application,  the  particular  facts  and  circumstances 
which  render  such  a  summary  proceeding  proper  should  beset 
forth  in  the  bill  or  petition  on  which  such  application  is 
founded."  > 

I  Verplanck   v.  Mercantile  Co.,  2  for  the  appoiutment  of  receiver  bj 

Paige  Ch.  (N.  Y.)  437, 450:  San  ford  v.  stating  the    facts  which   show   the 

Sinclair,  8  Paige  Ch.  374.     In  Nus-  necessity  and  propriety  of  it.     Wil- 

baum    V.    Myer,  12  Md.  315,  it  was  son  v.  Maddox.  46  W.  Va.  641.  33  S. 

held  that  "a  receiver  ought  not  to  E.  775.     If  fraud  in  a  debtor's  dealing 

beappointed  without  previous  notice  with  his  property  is  relied  upon,  the 

of  the  application  given  to  the  de-  facts  constituting  fraud  mustbedis- 

fendantunlessthe  necessity  be  of  the  tinctly  averred  and  not  charged  as 

most  stringent  character."     Blond-  mere  conclusions.  Barley  v.  Gittings, 

heim  v.  Moore,  11  Md.  365:  French  v.  15  App.   D.   C.   427;  English  v.  The 

Gififord,  30  Iowa.  148:  Whitehead  v.  People.  90  111.  App.  54,  57,  wliere  it 

Wooten,    43  Miss.   5-'3.     The  bill  of  was  held  that  if  it  appears  that  the 

complaint  must  lay  the  foundation  delay  resulting  from  the  giving  of 


P  390-1  RECEIVERS. 

In  cases  where  the  appointment  would  dispossess  persons  in 
the  possession  of  real  estate,  the  emergency  would  have  to  be 
very  -reat  and  very  clearly  shown  to  demand  immediate  ac- 
tion, to  induce  the  court  to  make  the  appointment  ex  parte^ 
The  general  rule  seems  to  be  that  the  court  in  such  cases  wil 
not  appoint  a  receiver  without  a  hear.ng  It  ^as  been  said 
that  ''  the  principle  is  at  least  as  old  as  the  Magna  Charta  that 
a  man  shall  have  a  trial  of  his  rights  before  dispossession. 

Bf/  pdition.     The  more  usual  manner  of  procedure  lor  the 
appointment  of  a  receiver  is  by  petition,  or,  as  is  sometimes  said, 
by  motion,  after  the  bill  is  filed  and  the  defendant  notified  by 
service  of  process.     The  petition  should  set  forth  clearly  and 
explicitly  the  reasons  for  the  appointment,  making  reterence 
to  the  bill  of  complaint  on  file,  with  which  it  must  be  consist- 
enf  for  the  application  must  rest  upon  the  bill  as  well  as  the 
peti'tion,  for  if  the  alleged  case  in  the  bill  will  not  support  an 
appointment,  the  court  will  not  entertain  the  application.    The 
petition  should  be  fully  supported  by  affidavits,  at  least  as  to 
all  material  facts  not  positively  averred  and  sworn  to  in  the 
bill  of  complaint.     This  petition  should  be  signed  ami  verih.d 
by  the  applicant,  or  some  one  in  his  behalf,and  acopy  thereo. 
with  copies  of  the  affidavit  and  all  other  written  proofs  relied 
upon,  served  upon  the  opposite  party  with  a  notice  of  the  tune 
and  place  and  before  whom  the  application  will  be  made.    The 
len-th  of  time  to  be  given  for  the  hearing  is  generally  fixed  in 
each  jurisdiction  by  rule  of  court  or  by  statute.     The  applica- 
tion for  receiver,  if  made  at  any  time  after  the  bill  is  filed  and 
the  defendant  served,  should  be  by   petition;  and   the  petition 
should  state  upon  what  the  applicant  relies  to  support  his  ap- 
plication     If  upon  affidavits  served  with  the  petition  and  the 
bill  of  complaint,  or  the   bill  of  complaint  and   the  answer 
thereto,  it  should  be  so  stated,  that  the  respondent  may  know 
what  he  has  to  meet  when   the   application   comes   on   for 
hearing. 

ment  may  be  so  made,  but  tlie  c.r-     721,  72,^ 
cumstances  rendering  it  necessary 


640  RECEIVERS.  [§  390. 

Opposing  the  application.  The  respondent  may  o])pose  the 
application  for  the  appointment  of  a  receiver  by  producing 
counter-affidavits  and  filing  a  sworn  answer  denying  all  the 
equities  of  the  bill  upon  which  the  receiver  is  sought,  for 
it  has  been  said  that  the  plaintiff  in  such  case  has  addressed 
himself  to  the  conscience  of  the  defendant,  and  by  the  filing 
of  his  bill  and  his  application  for  a  receiver  has  made  him  a 
witness  and  must  take  his  answer  as  true,  unless  he  can  over- 
come it  by  other  testimony; '  and  if  a  receiver  has  already  been 
appointed  before  the  defendant  has  appeared  and  filed  his  an- 
swer, upon  the  coming  in  of  the  defendant's  sworn  answer  com- 
pletely denying  all  the  equities  of  the  bill,  the  receiver  will 
generally  be  discharged.  But  the  general  trend  of  authority 
would  seem  to  be  that  the  sworn  answer  need  not  be  taken  as 
absolutely  true,  but  will  be  given  such  weight  as  the  court  con- 
siders it  worthy.'  The  effect  of  a  sworn  answer  denying  all 
the  equities  in  the  bill  ot  coiupUint  appears  to  be  the  same 
as  in  proceedings  for  an  injunction.  If  the  answer  does  not 
deny  all  the  equities  in  the  bill,  those  equities  which  are  un- 
denied  will  be  taken  as  true  unless  controverted  by  other  proof 
adduced  at  the  hearing.  And  if  it  should  appear  at  the  hear- 
ini,^  of  the  petition  that  the  bill  does  not  state  a  cause  of  action, 
or  that  it  is  improbable  that  the  relief  prayed  for  will  ulti- 
mately be  granted,  the  application  should  be  refused. 

The  sworn  answer  of  a  defendant  denying  all  the  equities 
in  the  bill  of  complaint  is  no  doubt  a  strong  defense  to  the 
application  for  a  receiver;  still  it  seems  that  it  is  not  a  conclu- 
sive reason  for  either  refusing  to  appoint  a  receiver  or  dismiss- 
ino-  a  receiver  who  has  already  been  appointed.     At  most  the 

iThompsen  v.  Diffenderfer.  1  Md.  Voshell  &  Heaton  v.  Hynson  et  al., 

Ch.  489.     Judge  Story  in  his  Equity  26  Md.  83,  94;  Barton  v.  Loan,  etc 

Pleading,  section  852,  says:  "An  an-  Ass'n.  114  Ind.  226.  'J28.     In  Crombie 

swer  must  be  full  and  perfect  to  all  v.  Order  of  Solon,  157  Pa.  St  5-8.  5^10. 

the  material  alienations  in  the  bilL  the  court  say:  "But  it  is  sufficient 

It  must  confess,  avoid,  deny  or  trav-  for  us  that  every  substantial  aver- 

erse  all  the  material  parts  of  the  bill,  ment  of  the  bill  is  denied  by  a  com- 

It  must  state  facts  and   not  argu-  pletely  responsive  answer,  which  is 

ments.     It  is  not  sufficient  that   it  not    overcome,   nor    even    met.    by 

contains  a  general  denial  of  the  mat-  further  proof.  There  is  nothing,  there- 

ters  charged."     Rhodes   v.    Lee,    b3  fore,  on  which  the  injunction  or  the 

Ga.  470.  receivership  can  rest." 

2Drury  v.  Roberts,  2  Md.  Ch.  157; 


§  391.]  EEOEIVEES.  541 

answer  stands  as  evidence  in  the  case  to  be  considered  the 
same  as  other  evidence  adduced  bj  the  parties,  and  so  all  that 
can  be  expected  is  that  the  court  will  take  the  whole  case  into 
consideration;  consider  the  credibility  of  the  answer  the  same 
as  the  credibility  of  other  proof  adduced;  its  consistency 
with  the  defense  claimed,  and  if,  after  due  deliberation,  it 
should  appear  to  the  court  that  equity  and  good  conscience  re- 
quire the  appointment  to  remain  as  it  has  been  made,  or  that 
a  receiver  be  appointed  and  continue  until  the  further  order 
of  the  court,  the  court  will  so  act  notwithstanding  the  answer 
in  terms  denies  the  charges  in  the  bill.' 

§  301.  Tho  order  on  application  for  appointment. —  It 
goes  without  saying,  and  is  a  general  rule,  that  a  receiver  has 
no  greater  power  or  authority  over  the  property  or  assets  in 
controversy  than  that  conferred  upon  him  by  the  order  for 
his  appointment.-  And  so  the  order  must  in  terms  confer  upon 
the  receiver  such  power  and  authority  as  in  the  judgment  of 
the  court  it  is  deemed  necessary  he  should  possess  in  the  par- 
ticular case.  It  would  be  difficult  to  lay  down  any  fixed  form 
of  order  or  define  its  scope,  as  every  order  depends  upon  the 
facts  and  circumstances  of  the  particular  case  in  which  it  is 
made.  The  order  should  describe  the  property  or  assets  of 
which  the  receiver  is  to  have  custody  and  control  with  as 
much  particularity  as  the  nature  of  the  case  will  permit,  but 
it  need  not  be  with  absolute  certainty;  if  it  is  described  with 
such  certainty  that  it  may  be  identified  and  distinguished 
from  other  property  of  like  kind  it  is  sufficient.' 

'  In  Cohen  V.Meyers,  42  Ga  46, 49.  the  quo  until  a  jury  can  pass  upon  the 

court  say:  "As  a  matter  of  course,  case,    tlie    order    outiht    to    stand." 

if  tliere  be  no  equity  in  tlie  bill,  if  fanieron   v.   Groveland,  etc.  Co.,  20 

the  court  Uah  no  jurisdiction  of  the  Wash.  169,  171;  Beach  on  Receivers, 

case,  that  is  another  matter.     But  it  sec.  l.")l. 

is  a  mistake  to  suppose  tiiat  if  the  *  Grant  v.  City  of  Daveiijjort.   18 

answer  in  terms  denies  tlie  charges  Iowa,  I7i),  194. 

in  the  bill,  the  judge  is'requ  red  by  ^  1  Freeman  on  Judg.  (4th  ed. )  sec. 

law  to  revoke  his  order  granted  ex  500.     In  Steele  v.  Walker,   115   Ala. 

parte.    He  is  to  take  tlie  whole  case,  4h5,  492.  the  court  say:  •Such  orders 

to  consider  the  credibi  ity  of  the  an-  do  not  become  the  source  or  foun.la- 

swer.  its  consistency  with  itself,  and  tion  of  title  to  property,  and  while  it 

with  the  nature  of  the  case;  and  if  is  desiraiile   in    practice   to  render 

on  the  who  e  it  appears  that  justice  them  as  certain  as  practicable,  there 

requires  things  to  remain  in   statu  is  not  the  reason  for  exacting  from 


542  RECEIVERS.  [§  391. 

If  the  case  is  one  in  which  the  court  determines  to  talce  into 
its  control  all  of  the  property  of  the  defendant  —  as,  for  ex- 
ample, the  property  of  a  corporation  or  a  partnership,  or  all 
the  property  of  a  debtor, —  a  general  description  of  the  prop- 
erty is  sulticient.  The  object  of  the  appointment  being  to 
preserve  the  property  during  the  litigation,  it  follows  that  the 
order  should  embrace  authority  to  do  whatever  is  necessary  to 
preserve  the  property,  even  to  the  extent  of  giving  it  addi- 
tional value.  And  so  where  a  receiver  is  appointed  to  take 
into  custody  a  going  business,  either  of  an  indiviiual,  a  firm 
or  a  corporation,  the  court  in  its  discretion  may  order  the  busi- 
ness continued  if  deemed  for  the  best  interest  of  all  the  parties. 
If  it  be  a  qvasi-puhWc  corporation  —  as,  for  example,  the  prop- 
erty of  a  railroad  company,  a  public  lighting  company,  or  a 
telephone  company, —  the  court  will  order  the  business  to  be 
carried  on  by  a  receiver,  because  public  as  well  as  private  in- 
terests are  involved. 

As  was  said  by  the  court  in  Gilbert  v.  Washingtoii  City,  etc. 
Ry.  Co.^  "a  court  of  equity  having  in  charge  the  mortgaged 
property  of  a  railroad  company  is  authorized  to  do  all  acts 
that  may  be  necessary  within  its  corporate  power  to  preserve 
the  property,  and  to  give  to  it  additional  value,  not  only  for 
the  benefit  of  the  lien  creditors,  but  also  for  the  benefit  of  the 
company,  whose  possession  the  court  has  displaced  by  the  ap- 
pointment of  a  receiver,  and  by  taking  into  its  own  hands  the 
property,  rights,  works  and  franchises  of  the  company.  Any 
act,  it  would  seem,  necessary  for  the  protection  and  preserva- 
tion of  the  property  is  a  legitimate  and  proper  act,  and  what- 
ever is  manifestly  appropriate  to  such  preservation  and  protec- 
tion, or  to  the  enhancement  of  the  value  of  the  property,  not 
in  excess  of  the  powers  of  the  corporation,  will  always  be  up- 
held and  enforced  by  the  courts." 

It  has  been  held  that  "the  power  of  a  court  of  equity  to  ap- 
point managing  receivers  of  such  property  as  a  railroad,  when 

them   that  degree  of  certainty  re-  in  failing  to  take  possession  of  lands 

quired  to  support  a  final  judgment  not  embraced  by  it,  tlie  court,  at  the 

or  decree.     The  exception  is  in   the  instance    of    the    party    aggrieved, 

nature  of  a  direction  or  instruction  would   readily   have   corrected    the 

to  the  receiver,  and  if  he  erred  in  its  error." 

application,  either  in  the  taking  pos-  '  ^3  Grat  (Va.)  568,  GOi 

sessioQ  of  lands  embraced  by  it,  or 


§  301.]  EECEIVER8.  543 

taken  under  its  charge  as  a  trust  fund  for  the  payment  of  in- 
cumbrances, and  to  authorize  such  receivers  to  raise  money 
necessary  for  the  preservation  and  management  of  the  prop- 
erty, and  make  the  same  chargeable  as  a  lien  thereon  for  its 
repayment,  cannot,  at  this  day,  be  seriously  disputed."^  The 
order  usually  provides  that  the  receiver  shall  give  a  bond  for 
the  faithful  performance  of  the  trust  imposed  upon  him  in  a 
penal  sum  fixed  by  the  court,  but  the  order  of  the  appointment 
relates  back  to  the  date  of  granting,  even  though  it  may  not 
be  com])lete  until  the  bond  is  executed.  The  appointment  con- 
tinues during  the  pendency  of  the  litigation  unless  it  is  limited 
or  modified  by  the  order.  From  the  time  of  the  appointment 
of  the  receiver  the  property  is  in  the  custody  of  the  court,  as 
it  IS  said  it  is  in  custodia  legis,  and  not  subject  to  levy  or  exe- 
cution or  attachments  for  the  debts  of  the  defendant. 

The  order  usually  recites  that  the  bill  of  complaint  has  been 
filed,  read  and  considered,  together  with  the  evidence  adduced; 
if  the  appointment  be  made  upon  motion,  that  the  defendants 
have  been  dulj'  notified  to  appear,  and  that,  after  due  consid- 
eration of  the  premises,  "it  is  ordered,  adjudged  and  decreed 
by  the  court  that  the  person  selected  (naming  him)  be,  and  is 
hereby,  appointed  receiver  of  this  court  of  all  and  singular  the 
property,"  etc.  The  order  in  terms  apprises  the  parties  and 
the  person  appointed  of  what  property  and  effects  he  is  ap- 
pointed receiver.  He  is  ordered  and  directed  to  take  immediate 
possession  of  the  property  described  in  the  order  wherever  it 
may  be  found.  The  defendant  is  ordered  to  forthwith  turn 
over  and  deliver  to  the  receiver  all  the  property,  rights,  inter- 
ests and  effects  described  in  the  order,  together  with  books  of 
account,  vouchers,  papers,  deeds,  contracts,  moneys  or  evidences 
of  indebtedness  pertaining  to  the  business  of  the  defendant,  or 
the  property  taken  into  custody  by  the  court,  and  generally  an 
injunction  is  ordered  enjoining  the  defendant  from  in  any  way 
whatever  interfering  with  the  possession  or  management  of 
any  part  of  the  business  or  property  over  which  the  receiver  is 
appointed,  or  from  in  any  way  preventing  or  seeking  to  pre- 
vent the  discharge  of  his  duties  as  such  receiver.  And  usually 
the  order  further  directs  the  receiver  to  deposit  the  money 
collected  in  some  bank  and  to  report  to  the  court  the  bank  he 

1  Wallace  v.  Loomis,  97  U.  S.  (7  Otto),  146,  163. 


544  RECEIVERS.  [§  391. 

has  selected.  It  also  authorizes  him  to  prosecute  and  defend 
all  suits  that  may  be  commenced,  or  which  he  may  commence, 
necessary  to  carry  out  the  trust  imposed.  A  nd  as  has  been  said, 
the  order  also  fixes  the  amount  of  the  bond,  the  court  reserv- 
in"-  the  control  and  direction  of  the  receiver  and  the  business 
and  property  in  his  hands.*    The  title  of  the  receiver,  by  virtue 

'  An  approved  form  of  order  in  the  appointment  of  a  receiver  over  a 
railway,  taken  from  Loveland's  Forms  of  Federal  Procedure,  No.  292: 

(Caj>h'on.) 

U|OM  reading:  and  considering  the  verified  bill  in  this  cause.  top:ether 
with  the  evidence  adduced,  on  motion  of  counsel  for  the  plaintiff,  the  de« 
feiiilant  having  lieen  duly  notified  to  appear  bv  its  counsel,  it  is  ordered  by 
tlie  court  that  S.  M.  be  and  is  hereby  ap|iointed  receiver  of  this  court  of  all 
and  singular  the  property,  assets,  rights,  and  franchises  of  thet^.  &  D.  Rail- 
way Coiii(iany  described  in  the  bill  of  complaint  herein,  wherever  situated, 
including;  all  the  railroad  tracks,  terminal  facilities,  real  estate,  warehou.ses, 
ottice.s,  stations,  and  all  other  buildinus  and  property  of  every  kind  owned, 
held,  pos.sessed.  or  controlled  by  said  company,  together  with  all  other 
property  in  connection  therewitli,  and  all  moneys,  choses  in  action,  credits, 
bonds,  stocks,  leasehold  interests,  operating  contracts,  and  other  as.sets  of 
every  kind,  and  all  other  proi'erty,  real,  personal  and  mixed,  held  or  pos- 
sessed by  it,  to  have  and  to  hold  the  same  as  the  ofBcer  of  and  under  llie 
orders  and  directions  of  the  court. 

The  said  receiver  is  hereby  authorized  and  directed  to  take  immediate 
possession  of  all  and  singular  the  property  above  de.scribed,  wherever  situ- 
ated or  found,  and  to  continue  the  operation  of  the  railroad  of  said  com- 
pany, and  to  conduct  systematicallj,  in  the  same  manner  as  at  present,  the 
busmess  and  occupation  of  carrying  passengers  and  freight,  and  the  dis- 
charge of  all  the  duties  obligatory  upon  said  company. 

And  said  C.  &  D.  Railway  Company,  and  each  and  every  of  its  officers, 
directors,  agents  and  «^mployeesare  hereby  r  quired  and  commanded  forth- 
with to  turn  over  and  deliver  to  such  receiver  or  his  duly  constituted  reii- 
resentative  any  and  all  books  of  account,  vouchers,  papers,  deeds,  leases, 
contracts,  bills,  notes,  accounts,  money  or  other  property  in  his  or  their 
hands  or  under  his  or  their  control,  and  they  are  hereby  commanded  and 
required  to  obey  and  conform  to  such  orders  as  may  be  given  them  from 
time  to  time  by  the  said  receiver  or  his  duly  constituted  representative  in 
conducting  the  said  railway  and  busines.s.  and  in  discharginij  his  duty  as 
such  receiver;  and  they  and  each  of  tliein  are  hereby  enjoined  from  inter- 
fering in  any  way  whatever  with  the  possession  or  management  of  any 
part  of  the  business  or  property  over  which  saiii  receiver  is  so  appointed, 
or  from  in  any  way  preventing  or  seeking  to  prevent  the  discharge  of  his  du- 
ties as  such  receiver.  Said  receiver  is  hereby  fully  authorized  to  continue  the 
bu.sintss  and  operate  the  railway  of  said  company,  and  manaiie  all  its  prop- 
erty at  h  s  dise;retion,  in  such  manner  as  will,  in  his  judgment,  produce 
the  most  satisfactory  results  consistent  with  the  discharge  of  the  public 
duties  impo.se«l  on  said  company,  and  to  collect  and  receive  all  income 
therefrom  and  all  debts  due  said  comi  any  of  every  kind,  and  for  such  pur- 
pose he  is  hereby  invested  with  full  power  at  his  discretion  to  employ  and 
discharge  and  fix  the  compensation  of  all  such  officers,  counsel,  managers, 
agents  and  employees  as  may  be  required  for  the  proper  discharge  of  the 
duties  of  his  trust. 

And  said  receiver  is  directed  to  deposit  the  moneys  coming  into  his 
hands  in  some  bank  or  banks  in  the  city  of ,  and  to  report  his  selec- 
tion to  the  court. 

Said  receiver  is  hereby  fully  authorized  and  empowered  to  institute  and 
prosecute  all  such  suits  as  may  be  necessary,  in  his  judgment,  to  the  pi  oper 
protection  of  the  pro|ierty  and  trust  hereby  vested  in  him,  and  likewise 
defend  all  actions  in.--tituted  against  him  as  receiver,  and  also  to  appear  in 
and  conduct  the  prosecution  or  defense  of  any  and  all  suits  or  proceedings 


^  391.]  RECEIVERS.  545 

of  the  order  appointing  liira,  seems  to  be  that  of  one  holding 
the  property  as  a  trustee  under  the  direction  and  order  of  the 
court. 

now  pending  in  any  court  against  said  company,  the  prosecution  or  defense 
Sf  wlm"  \v.ll  in  tl.e  judgment  of  said  receiver,  be  nece.ssary  and  proper  for 
?L  , '.otertion  of  tl.e  property  and  rights  placed  in  h.s  charge,  and  tor  the 
interest  of  the  creditors  and  stockhoMers  of  said  company. 

Said  receiver  is  hereby  required  to  give  bond  m  the  sum  of  $100,000  with 
securitv  satisfactory  to  this  court,  for  tlie  faitliful  dischart^e  of  hi.s  duties, 
and  IS  also  required  to  make  and  file  full  reports  in  this  court  quarter^. 

And  the  court  reserves  the  right  by  orders  hereinafter  to  be  made,  to 
direct  and  contiol  the  payment  of  all  .supplies,  materials,  and  other  claims, 
and  to  in  all  respects  regulate  and  control  the  conduct  of  said  receiver. 

J.  S..  Circuit  Judge. 

And  thereupon  came  in  open  court  said  S.  M..  and  accepted  such  appoint- 
ment, and  was  thereupon  du  y  sworn  according  to  law,  and  tendered  ms 
bond  as  required  by  said  order,  with  W.  P.  and  C.  J.  as  sureties  therein, 
which  bond  is  hereby  approved  and  accepted. 

And  the  following  order  appointing  a  receiver  for  a  manufacturing  cor- 
poration (Loveland's  Forms,  No.  293): 

(Caption.)  ,  .   .   i.  .     I.I.' 

Upon  reading  and  filing  the  verified  bill  of  complaint  in  this  cause, 
together  with  the  verified  attidavits  of  J.  W.  and  G.  L..  and  the  exhibits 
in  support  thereof,  and  on  motion  of  the  counsel  for  plaintiff,  and  coun- 
sel for  defendant  appearing  and  consenting  thereto,  it  is  ordered  by  the 

court  that   E.  Y.,  of ,  in  the  state  of .  and  C.  L..  of — .  in 

the  state  of .  be  and  they  are   hereby  appointed   receivers  of  this 

court  of  all  and  singular  the  property  of  the  N.  V.  Co.  of  every  descriF)tion, 
and  all  money,  claims  in  actions,  credits,  bonds,  stocks,  leasehold  interests 
or  operaiing  contracts,  and  other  assets  of  every  kind,  and  all  other  prop- 
erty real,  personal,  or  mixed,  held  or  possessed  by  said  company,  to  have 
and  to  hold  the  same  as  officers  of  and  under  the  orders  and  directions  of 

this  court.  ,  ,.  ,  i    ^  ,  It 

The  said  receivers  are  hereby  authorized  and  directed  to  take  immediate 
possession  of  all  and  singular  the  property  above  described,  and  to  continue 
the  business  of  said  company.  -      •  j 

Each  and  eve  ry  of  the  officers,  directors,  agents  and  employees  of  said 
N.  C.  Company  are  hereby  required  and  commanded  forthwith,  upon  de- 
mand of  the  said  receivers,  to  turn  over  and  deliver  to  such  receivers  any 
books,  papers,  moneys,  or  deeds,  or  property,  or  vouchers  for  the  property, 
under  their  control.  ,    ^  , 

The  said  N.  C.  Company  and  its  officers  are  hereby  directed  immediately 
to  execute  and  deliver  to  the  said  receivers  deeds  of  all  real  estate  now 
owned  or  posse.ssed  by  said  company,  and  transfers  and  assignments  of  all 
their  property.  4.      n 

Said  receivers  are  hereby  fully  authorized  to  institute  and  prosecute  all 
such  suits  as  they  mav  deem  necessiiry,  and  to  defend  all  such  actions  in- 
stituted against  them'as  such  receivers,  and  also  to  appear  in  and  conduct 
the  prosecution  or  defense  of  any  suits  against  the  said  N.  C.  Company. 

The  said  receivers  are  hereby  authorized  and  directed,  out  of  the  moneys 

coming  into  their  hands,  to  pay  and  discharge  all  amounts  due  to  emp.oy- 

ees  upon  the  current  pay-roll.  .  ,     ,        ,     ,     r  i.u  t 

Each  of  the  said  receivers  is  required  to  file  with  the  clerk  of  the  court 

within  ten  days  from  date  a  proper  bond,  the  sureties  to  be  approved  by 

the  clerk  of  this  court,  in  the  penal  sum  of dollars. 

All  creditors  of  said  N.  C.  Company  are  hereby  enjoined  from  in  any  way 
intermeddling  with  the  property  hereby  directed  to  be  turned  over  to  said 
receivers;  and  all  officers,  directors  and  a-ents  of  said  N  C.  Comi)any  are 
hereby  en  joined  from  interfering  with  or  disjiosing  of  said  property  of  said 
N.  C.  Company  in  any  way,  except  to  transfer,  convey  and  turn  over  the 
Bame  to  said  receivers.  J*  ^-f  Circuit  Judge. 


35 


546 


KECEIVER8. 


[§  392. 


§  392.  The  title  or  right  of  possession  and  control  of  the 
receiver. —  By  its  order  the  court  has  laid  its  hand  upon  the 
property  and  effects  of  the  defendant  and  taken  them  into  its 
custody  ynd  control  to  await  its  further  order.  It  has  directed 
the  defendant  to  turn  them  over  to  the  court's  ofiicer  —  the  re- 
ceiver—  and  thus  deprive  him  of  them  during  tlie  pendt^ncy  of 
the  suit.  By  this  ortler  the  receiver  takes  all  the  right,  title 
and  interest  that  the  person  or  defendant  for  whom  he  is  ap- 
pointed receiver  has  in  the  property  at  the  time  the  appoint- 
ment is  made  for  the  purposes  of  the  appointment,  subject  to 
all  legal  claims  or  defenses  against  it.'  The  receiver,  as  to  the 
property  of  the  defendant  over  which  he  is  appointed  and  also 
as  to  third  persons,  stands  in  the  same  position,  possessing  the 
same  rights  and  benefits  as  the  defendant  himself.  Any  right 
or  benefit  which  the  defendant  might  have  sustained  with 
reference  to  the  property,  the  receiver  may  sustain.  Any  de- 
fenses, liens  or  claims  that  might  be  made  against  the  defend- 
ant at  the  time  of  the  appointment  may  be  made  against  the 
receiver.  The  receiver,  as  to  the  property,  stands  as  a  repre- 
sentative of  the  defendant.' 

He  has  been  held  to  be  merely  a  ministerial  agent  of  the 


1  Nealis  v.  Ins!ey.  67  N.  Y.  S.  235; 
Anton  V.  City,  etc.  Ry.  Co.,  104  Fed. 
305;  Montjioniery  v.  Enslen,  1.26  Ala, 
651.  28  So.  6-6.  In  Battery  Park  Bank 
V.  Western  Carolina  Bank,  127  N.  C. 
432.  37  S.  E.  461,  held,  that  the  title 
of  a  receiver  relates  only  to  the  time 
of  liis  appointment,  and  valid  liens 
against  the  property  of  the  estate 
existing  at  the  time  thereof  are  not 
divested  thereby. 

-  Peterson  v.  Lindskoog.  93  111.  x\pp. 
276.  Where  a  bank  holding  the  note 
of  a  depositor  payable  at  the  bank 
on  the  day  of  its  maturity  paj-ssuch 
note  by  transferring  a  portion  of  his 
deposits  to  the  account  of  the  bank, 
having  no  knowledge  of  liis  insolv- 
ency, and  the  transfer  being  made 
before  the  order  of  the  supreme  court 
appointing  a  receiver  was  filed  with 
the  clerk  of  the  court,  it  was  held 
that  the  payment  was  valid,  even 


though  the  order  appointing  such  re- 
ceiver \vns  made  by  the  judge  of  the 
court  at  his  residence  before  sucli 
paynitni.  Wilcox  v.  National,  etc. 
Bank.  73  N.  Y.  S.  900.  In  Gillam  v. 
Nussbaum,  95  111.  App.  277.  it  was 
held  that  the  receiver  appointed  over 
partnersliip  property  takes  only  such 
title  as  the  partners  had,  and  the 
property  is  subject  to  a'l  valid  and 
subsisting  liens  thereon.  In  I.ong- 
fellow  V.  Barnard,  58  Neb.  61J.  79  N. 
W.  255.  it  was  held  that  the  ajipoint- 
ment  of  a  receiver  is  in  the  nature  of 
an  equitable  execution:  that  by  it 
the  court  is  able  to  reach  only  such 
interests  of  the  debtor  in  the  prop- 
erty impounded  as  the  creditors 
themselves  might  have  reached  with 
an  execution.  Wilt  v.  Electric  Co., 
187  Pa.  St.  424;  Kane  v.  Lodor,  56  N. 
J.  Eq.  268;  American,  etc.  Bank  v. 
McGettigan,  152  Ind.  582,  52  N.  E.  793. 


§  392.J 


RECEIVERS.  54T 


court  to  hold  the  property  or  the  fund  intact  until  tne  several 
rights  of  the  claimants  thereto  can  be  determined;  that  al- 
though his  possession  is  exclusive,  the  property  is  held  by  him 
subject  to  all  valid  liens  existing  against  it  at  the  time  of  his 
appointment,  but  that  after  the  property  passes  into  the  ex- 
clusive jurisdiction  and  control  of  the  court  no  liens  against  it 
can  be  obtained,  and  no  preferences  acquired  by  any  action 
the  claimants  may  take;  for  it  is  not  subject  to  exeeution  or 
interference  without  the  permission  of  the  court  who  appomted 
the  receiver.* 

The  court  and  its  receiver,  however,  will  recogni/.e  exemp- 
tion laws,  and  therefore  will  confer  no  right  or  title  to  prop- 
erty which  is  by  law  exempt  from  levy  and  sale  upon  execution 
upon  the  receiver;  nor  is  the  receiver  entitled  to  money  due 
for  a  pension.2     By  way  of  collecting  and  caring  ior  the  in- 
terest of  the  debtor  over  whom  he  is  appointed,  and  for  the 
benefit  of  the  creditor  claimants,  and  under  the  direction  and 
supervision   of  the  court,  the  receiver  may  be  authorized  to 
complete  the  execution  of  contracts,  collect  judgments,  and  in 
case  of  the  estates  of  infants  make  investments,  and  do  and 
perform  that  which  is  for  the  best  interest  of  the  parties  con- 
cerned in  the  litigation.'     So,  where  a  receiver  was  apjiointed 
for  a  manufacturing  company  and  was  authorized  to  continue 
the  business  as  it  was  formerly  conducted,  or  as  in  his  judg- 
ment might  be  necessary  to  preserve  its  outstanding  contracts 
from  loss,  to  enable  hira  to  collect  accounts  due  or  to  become 
due,  it  was  held  that  he  was  authorized  to  purchase  a  consign- 
ment of  supplies  to  complete  goods  contracted  for  before  his 
appointment;  and  that  he  might  make  such  purchases  in  the 
state  where  he  was  appointed,  or  any  other  state,  without  be- 

1  Cramer  v.  Her,  63  Kan.  579.  66  A.  321:  Isaacs  v.  Jones.  121  Cal.  257; 

Pac.  617.     In  Reynolds  v.  ^tna  Life  Cass  v.Sutlierland.Ob  Wis.  551;  Bulkly 

Ins.  Co.,  KiO  N.  Y.  6:55.  it  was  lieid  v.  Little,  154  N.  Y.  742,  49  N.  E.  1094; 

that  a  receiver  of  a. iudgment  debtor  Ward    v.  Petrie,  157  N.  Y.  301,  307, 

takes  title  to  life  eiuiovvment  policies  51  N.  E.  1002. 

payable  to  the  debtor  or  his  estate  -iFinnin   v.  Malloy,  33  N.  Y.  Sup. 

tiiough  their  existence  may  be  un-  Ct.  382:  Hudson   v.  Plets.  11   Paige, 

known  to  the  receiver  at  tlie  time  of  Ch.  (N.  Y.)  IbO;  Cooney  v.  Cooney,  65 

hisap|)Ointment.    Pelietier  v.  (ireen-  Barb.  (N.  Y.)  524. 

ville   Lumber  Co.,  l-'3  N.  C.  5915.  31  3  Alt^ton  v.  Masseuburg,   125  N.  C. 

S.  E.  855;  Clark  v.  McGhee,  31  C.  C.  582,  34  S.  E.  633. 


548  EECEIVEES.  [§  393. 

corning  personally  liable  therefor,  if  he  disclosed  his  character 
and  source  of  authority  at  the  time  or  before  the  purchase.' 
"Wh.T.'  adviinces  were  made  to  the  receiver  pundinj,'  the  re- 
ceivership under  the  permission  of  the  court  and  in  reliance 
on  its  order  reciuinng  repayment,  if  the  income  accruing  to 
the  receiver  was  sutticient  therefor,  it  was  held  proper  to  make 
an  order  directing  the  receiver  to  return  to  the  party  such  ad- 
vances.^ 

'MKi.  The  New  York  rule.— The  courts  of  the  several 
states  have  quite  generally  followed,  in  cases  of  creditors'  bills, 
the  rule  of  practice  adopted  in  the  early  New  York  chancery 
court,  where  on  hearing  the  motion  for  a  receiver  the  court 
either  made  the  appointment  or  referred  it  to  a  master  to  do 
so,  or  to  in(]uire  and  report  to  the  court  a  suitable  person  to  bo 
appointed.'  Upon  reference  to  the  master,  the  solicitor  for  the 
complainant  may  summon  the  defendant  and  examine  him  be- 
fore the  master  in  relation  to  the  property  which  by  the  court 
he  is  ordered  to  assign  and  deliver  to  the  receiver.  The  ob  ect 
of  the  examination,  it  is  said,  "  is  not  to  obtain  an  answer  to  the 
bill  nor  to  elicit  evidence  to  sustain  the  suit;  but  it  is  to  pro- 
cure and  compel  the  delivery  to  the  receiver  of  all  property 
and  effects  which  the  defendant  has  in  his  possession  or  under 
his  control;  and  the  rights  of  the  complainant  to  examine  the 
defendant  before  the  master,  as  to  such  property,  are  the  same 
where  the  defendant  answers  to  the  bill  as  where  he  suffers  it 
to  be  taken  as  confessed  ;  except  where  the  defendant  has  given 
a  stipulation  under  the  rule.*  Under  the  usual  order  of  refer- 
ence, the  only  objects  of  authorizing  the  examination  of  the 
defendant  and  of  witnesses  are  to  ascertain  the  nature  and 
value  of  the  defendants  property,  to  enable  the  master  to  de- 
termine who  would  be  a  proper  receiver  thereof,  and  the 
amount  of  security  to  be  given  by  the  receiver;  and  to  enable 
the  complainant  and  the  receiver  to  ascertain  whether  the 
order  of  the  court  is  complied  with  by  the  defendant  in  deliv- 
ering over  the  whole  of  his  property."  * 

iSager  Mfg.  Co.  v.  Smith,  60  N.  Y.  *  Browning  v.  Bettis,  8  Paige  Ch. 

a  849.  (N.  Y.)  568. 

'■i  El  k  Fork.  etc.  Co.  v.  Foster,  39  C.  *  2  Barb.  Ch.  Pr.  (2d  ed.).  top  paging 

C.  A.  615,  99  Fed.  495.  670. 

'Attorney-General  v.  Bank  of  Co- 
lunib.a,  1  Paige  Ch.  (N.  Y.)  511. 


EECEIVER8.  ^^^ 


§  394.] 

In  such  cases,  upon  the  order  of  reference  being  made  under 
the  rule,  or  an  order  appointing  a  receiver,  the  defendant  is 
bound  to  execute  to  the  receiver  a  formal  assignment  ot  his 
property,  including  all  equitable  interests  and  choses  in  action 
as  directed  by  the  order,  and  this  though  he  should  deny  under 
oath  that  he  has  any  property.'     The  purpose  and  necessity  of 
such  assignment  seems  to  be  to  enable  the  receiver  to  tes   the 
validity  of  any  assignment  or  other  disposition  the  defendants 
may  have  made  of  their  property,  and  as  an  authorization  to 
the  receiver  to  bring  suits  in  his  own  name  in  cases  where  be 
is  le-ally  authorized  to  do  so  either  at  law  or  m  equity,     l^ut 
it  would  srem  under  modern  practice  that  the  rights  of  the 
receiver  are  fixed  bv  the  order  appointing  him  rather  than  by 
the  assignment  of  the  defendants,  and  that  whether  the  as- 
signment is  executed  or  not  he  may  proceed  to  collect  the 
property  of  the  defendant  by  suit  or  any  other  legal  means. 
Tlie  procedure  and  practice,  however,  is  generally  fixed  by 
statute  and  rules  of  court  in  the  several  jurisdictions. 

8  J]<)4.  Something  of  the  powers,  duties  and  obligations  or 
the  receiver.- The  duties  of  a  receiver  are  entirely  minis- 
terial He  acts  under  the  direction  and  guidance  of  the  court. 
His  office  is  one  of  confidence  and  trust;  he  is  appointed  upon 
a  principle  of  justice  for  the  benefit  of  all  concerned.  His  ap- 
pointment has  been  said  to  operate  as  an  equitable  execution 
for  the  reason  that  every  kind  of  property  of  such  a  nature 
that  if  legal  it  might  be  taken  in  execution,  may,  if  equitable, 
be  put  into  his  possession. 

The  primary  object  of  his  appointment  is  to  collect  and  pre- 
serve the  assets  and  property  to  be  paid  out  or  distributed  as 

1  In  Chipman  v.  Sabbaton.  7  Paige  where  he  was  legally  authorized  to 

Ch  (N  Y.)47  it  was  held  that  under  sue  in  that  manner  either  lu  law  or 

the  order  for  the  appointment  of  a  in    equity.     But   if  the    delendants 

receiver  in  such  a  case  the  defend-  swear  that  they  had  no  property  or 

Tnts  were  bound  to  execute  to  the  choses  in  action  in  the.r  possess  on 

receiver  a  formal  assignment  of  all  or  under  the.r  power  and  control, 

thet     property    equitable  interests,  tl,e  execution  of  the  formal  ass.gn- 

etc    as  "       ted  by  the  order,  to  en-  ment  was  all  that  could  be  requ,red 

Ibi;  such  receiver  to  test  the  valid-  of  them  unless  it  appeared  by  other 

ityo    anyLgnmentor  testimony    that     they    had     sworn 

^sition  they  might  have  previously  falsely  as  to  such  property  and  et- 

niade  of  tht  ,r  property,  and  to  bring  fects. 
a  suit   in    his   own    name  in  cases 


550  RECEIVERS.  [§  'j'-^-i^. 

the  court  may  direct  in  its  final  decree.  Ills  custody  of  the 
property'  is  the  custody  of  the  law,  but  the  tendency  of  the 
equity  court,  because  of  the  growth  and  pro^^ress  of  its  juris- 
diction, is  to  clothe  the  receiver  with  much  larger  powers  than 
were  formerly  conferred;  as,  for  example,  in  some  of  the  states 
by  statute  they  are  charged  with  the  duty  of  settling  the  affairs 
of  large  corporations  and  important  interests;  to  conduct  the 
business  of  such  corporations,  and  to  bring  suits  in  their  own 
names  when  necessary.  As  has  been  said:  "It  is  not  unusual 
for  courts  of  equity  to  put  them  in  charge  of  the  railroads  of 
companies  which  have  fallen  into  financial  embarrassment,  and 
to  require  them  to  operate  such  roads  until  the  dilliculties  are 
removed,  or  such  arrangements  are  made  that  the  roads  can 
be  sold  with  the  least  sacrifice  of  the  interests  of  those  con- 
cerned. In  all  such  cases  the  receiver  is  the  right  arm  of  the 
jurisdiction  invoked."* 

The  receiver  is  the  mere  agent  or  instrument  through  whom 
the  law  takes  into  its  custody  the  assets  and  property  of  the 
defendant.  lie  has  no  independent  authority  or  power;  he  is 
appointed  in  behalf  of  all  the  parties  to  the  litigation,  not 
merely  on  behalf  of  the  complainant  or  of  the  defendant.  His 
duties  are  equal  and  alike  to  all;  he  is  responsible  to  the  court 


1  Davis  V.  Gray.  16  Wall.  (U.  S.)  in  which  he  was  appointed.  Nocred- 
203,  219;  New  York.  etc.  Tel.  Co.  v.  itor  having  a  claim  against  tlie  rail- 
Jewett,  11")  N.  Y.  168,  where,  in  dis-  road  company  or  its  pro|  eity  could 
cus.sing  the  office  and  duty  of  the  re-  sue  the  receiver  or  obtain  payment 
ceiver  where  the  court  had  taken  out  of  the  j»roperty  except  by  the 
into  it.s  jiossession  the  property  of  a  consent  of  the  court.  A  creditor  de- 
railroad  Company  todisjiose  of,  man-  siring  payment  out  of  the  property 
age  and  administer  it  for  the  benefit  in  such  a  case  is  obliged  to  apply  to 
of  all  parties  interested  therein,  or  the  court,  and  for  the  purpose  of 
having  claims  against  the  same,  the  having  the  claim  adjudicated  it  may 
court  said:  "The  receiver  was  merely  authorize  a  suit  against  the  receiver, 
its  officer,  arm  or  agent,  to  take  pos-  or  it  may  hear  the  claim  upon  a 
session  of  the  property  and  manage  summary  application  upon  affidavits 
and  dispose  of  the  same  under  its  or  oral  evidence;  or.  where  the claina 
direction  and  subject  to  its  control,  is  disputed,  it  may  order  a  reference; 
He  could  at  any  time  be  discharged  and  whether  tlie  jToceeding  be 
by  the  court  and  another  receiver  against  the  receiver  by  action  or  by 
appointed,  or  the  property  could  be  a  summary  afiplicai ion,  tiie  purpose 
taken  out  of  liis  hands  and  restored  is  to  enable  the  court  to  determine 
to  its  owner  or  otherwise  disposed  of  whether  the  claim  ought  to  be  paid.** 
under  the  judgment  in  the  actions 


KECEIVERS.  551 


§  394.] 

and  acts  only  under  its  orders  and  authority.^     He  may  orig- 
inate proceedings  for  the  purpose  of  obtaining  orders  of  the 
court  as  to  the  conduct  and  management  of  the  business  in- 
trusted to  him,  and  may  apply  to  the  court  for  general  advice 
and  instructions.     As  we  have  seen,  he  may  carry  on  and  con- 
duct the  business  of  the  defendant  over  whom  he  is  appointed 
receiver,  under  the  direction  of  the  court;  may  carry  out  the 
incompleted  contracts,  or  even  borrow  money,  collect  the  as- 
sets and  retain  the  care  and  custody  of  the  property  for  the 
future  disposition  of  the  court.     He  may  receive  money  not 
yet  due  under  certain  circumstances,  and  give  reasons  there- 
for; may  take  possession  of  and  use  the  funds  in  bank  for  the 
purposes  of  the  business  without  the  special  order  of  the  court 
when  it  is  incident  to  the  business  he  is  authorized  to  carry 
on.2     He  may,  by  leave  and  under  directions  of  the  court,  in- 
stitute such  suits  at  law  as  are  necessary  to  obtain  the  possession 
and  control  of  property  belonging  to  the  defendants  and  over 
which  he  is  appointed  receiver.     He  may  obtain  a  writ  of  as- 
sistance for  the  purpose  of  collecting  rents,  or  writs  of  seques- 
tration where  a  party  refuses  to  deliver  property,  and  may, 
under  direction  of  the  court,  compromise  debts  when  he  deems 
it  for  the  best  interest  of  the  estate;  or  sell  or  dispose  of  prop- 
erty by  direction  of  the  court;    may  make  repairs;  may  bring 
actmns,  defend  suits  and  do  and   perform  that   which  is  for 
the  interest  and  benefit  of  the  estate  over  which  he  is  ap- 
pointed.    But  the  receiver  has  no  authority,  by  virtue  of  his 
appointment,  to  seize  property  or  take  forcible  possession  of 
it,  but  must  obtain  lawful  possession,  and  to  that  end  enforce 
his  possession  by  lawful  means.     The  powers  of  the  receiver 
are  always  limited  by  the  order  of  the  court.     All  his  actions 
are  under  the  immediate  control  of  the  court,  and  he  must 

1  Attorney-General  v.  North  Am.  Railway  Company;  and  such  carry- 
Life  Ins.  Co.,  89  N.  Y.  103;  Hill  v.  inu'  on  and  operating  contemplated 
Parker,  111  Mass.  508. 15  Am.  Rep.  63;  and  required  the  handling,  receiv- 
Booth  V.  Clark.  17  How.  (U.  S.)  331.  ing  and  paying  out  of  money,  the 

2  In  Soutiiern  Develoi)ment  Co.  v.  payment  and  collection  of  bills,  and 
Houston,  etc.  Ry.  Co..  '.-^7  Fed.  344,  the  transaction  of  sucli  financial 
the  court  held  that  the  receivers  were  business  as  would  require  the  me- 
authorized  and  directed  to  carry  dium  of  and  accommodation  of 
on   and   operate  the    railways  and  banka 

property  of  the  Houston  &  Central 


552  RE0EIVEK8.  [§  304 

constantly  apply  to  the  court  for  its  advice  and  sanction.  On 
the  other  hanil,the  court  will  take  supervision  as  to  all  actions 
or  proceedings  against  him,  and  "will  not  allow  him  to  be 
sued  touching  the  property  in  his  charge,  nor  for  any  niaHeas- 
ance  as  to  the  parties,  or  others,  without  its  consent;  nor  will 
it  permit  his  possession  to  be  disturbed  by  force,  nor  violence 
to  bo  offered  to  his  person  while  in  the  discharge  of  his  official 
duties.  In  such  cases  the  court  will  vindicate  its  authority, 
and,  if  need  be,  will  punish  the  offender  by  fine  and  imprison- 
ment for  contempt."'  The  reason  of  the  rule  is  said  to  be 
that  it  is  essential  for  the  protection  of  receivers  against  un- 
necessary and  oppressive  litigation  and  should  be  carefully 
niaint;iined.2  The  receiver,  being  an  officer  of  the  court,  is 
directly  responsible  to  the  court  which  appoints  him  for  anj' 
misappropriations,  or  any  negligence  or  misconduct  in  the  per- 
formance of  his  duty,  and  for  any  failure  to  comply  with 
an  order  of  the  court  requiring  him  to  report  his  proceed- 
ings, or  to  pay  the  money  into  court,  or  to  dispose  of  the 
funds  and  the  property  in  his  hands  as  directed  by  the  court. 
IJis  liability  only  ceases  when  ho  has  been  discharged  and 
the  property  has  been  taken  out  of  his  possession,  and  he 
has  entirely  fulfilled  the  orders  of  the  court  and  turned  over 
all  the  money,  funds  and  property  in  his  hands  in  compliance 
with  the  court's  direction.' 

J  Davis  V.   Griy,  16  Wall.  (U.  S.)  set  aside  a  fraudulent  conveyance  of 

203,  218;    Verplanclc    v.    Mercantile,  other  land    made  by  the  purchase- 

etc.  Co.,  2  Paige  Ch.  (N.  Y.)  452.  money  debtor  in  order  to  subject  it 

'■^In  Degroot  v.  Jay,  30  Barb.  (N.  Y.)  to  the  payment  of  tlie  del>t  wliich  he 

483,  it  vi'as  held:  "The  receiver  is  an  was  ordered  to  collect.     MoAliister 

officer  of  the  court,  and  by  the  well-  v.    Harmon,   97  Va.    54o:    Minot    v. 

settled   practice,   permission   of  the  Mastin,   37   G  C.    A.   234;  Smith  v. 

court    was    necessary    to    warrant  Railway  Co..  151  Mo.  391.     As  to  ob- 

an  action  against  him.     This  rule  is  tainingleaveof  courttobringactions 

essential  for  the   protection   of  re-  against  receivers.  Pierce  v.  Chism, 

ceivers  again.'jt  unnecessary  and  op-  23   Ind.    A  pp.    505,    55    N.    K    795; 

pressive    litigation,   and    should   be  Goodnough  v.  Gatch,  37  Oreg.  5,  60 

carefully  maintained."   In  Parker  v.  Paa  ■■83;  Kirk  v.  Kane,  87  Mo.  .A  pp. 

Browning,  8  Paige   Ch.  (N.  Y.)  388.  274;    Wilson    v.    Rankiu,    129   N.   C. 

where  a  receiver  had  been  directed  447,  40  S.  E.  310;  Murray  v.  Etche- 

to  collect    purchase-money  due  for  pare.  132  Cal.  286,  64  Pac.  282. 

land,  the  sae   of  which    had   been  *  De    Winton    v.    Mayor,   etc.,   28 

confirmed,  it  was  held  that  this  did  Beav.  200.  where  it  was  held  that  if 

not  authorize  him  to  bring  a  suit  to  the  court  has  distinct  evidence  be- 


S  3i)5.]  BEOEIVBRS.  553 

§395.  Foreign  and  ancillary  receivers.— It  is  a  general 
rule  that  the  powers  of  a  receiver  are  co-extensive  only  with 
the  jurisdiction  of  the  court  that  appoints  him,  but  this  general 
rule  is  subject  to  an  exception  which  has  become  so  well  settled 
that  it  must  be  considered  as  a  part  of  the  rule,  for  it  is  gen- 
erally conceded  that  a  receiver  duly  appointed  and  acting  in 
a  cause  in  pursuance  of  the  orders  of  the  court  to  collect  the 
property  and  effects  of  the  defendant  will  be  recognized  and 
permitted  to  act  in  a  foreign  jurisdiction,  unless  it  would  con- 
flict with  the  policy  of  the  court  of  that  jurisdiction,  or  un- 
justly interfere  with  the  rights  of  its  own  citizens  or  parties 
to  suits  in  the  jurisdiction.  This  is  regulated  by  the  comity  of 
states,  and  is  in  harmony  with  those  principles  which  regulate 
the  intercourse  of  governments.  And  so  it  may  be  said  to  be 
a  general  rule  that  after  completely  protecting  its  own  citizens 
and  laws,  the  dictates  of  international  comity  require  that  the 
courts  of  every  government  should  ren<ler  every  assistance  in 
their  power  to  further  the  execution  of  the  authority  of  foreign 
tribunals,  and  in  so  doing  will  acknowledge  and  aid  its  officers. 

Opposed  to  this  principle  there  can  be  no  legal  reason.  To  rec- 
ocrnize  a  different  rule  would  not  only  be  without  the  sanction 
of  sound  legal  principles,  but  would  frustrate  and  set  at  naught 
the  procedure  of  the  foreign  court  simply  for  the  sake  of  do- 
imr  so,  and  with  the  only  result  that  the  court  would  be  baffled 
and  prevented  from  doing  justice.  And  it  cannot  be  said  that 
this  is  the  legal  attitude  of  governments  toward  each  other. 
The  question  rests  entirely  upon  the  comity  which  exists  be- 
tween the  different  states.  It  is  upon  this  that  the  courts  of 
one  state  recognize  and  enforce  the  acts  of  a  recjciver  who  is 
a]>pointed  in  another  state. 

This  was  discussed  in  Jlurd  v.  City  of  Elizabeth,^  where  the 

fore  it  that  sums  of  money  received  610.  where  it  was  held  that  money 

by  the  receiver  are  bemg  misapplied  in  the  hands  of  a  receiver  is  in  his 

and  paid  to  persons  having  no  title  possession  as  a  custodian  and  tlmt  he 

to  them,  then,  although  the  time  for  alone  is  responsible  for  it;  tiiat  it  is 

passing  his  accounts  has  not  yet  ar-  at  his  own  risk  that  he   parts  with 

rived,  the  court  will  direct  tiiat  the  it  without  an  express  order  of  the 

matter   he  suspended  until  the  re-  court.     See  Commonwealth  v.  Insur- 

ceiver  has  passed  his  accounts  and  ance  Co..  14  Allen  (Masa).  :544. 

that   the    funds   be  secured   in  the  Ul    N.  J.  Law.  1,  4.    In  Sercomb 

meantime.     Ricks  v.  Broyles,  78  Ga.  v.  CaLlin,  1^8  III.  556,  563,  the  court 


554  RECEIVERS.  [g  395. 

contention  was  that  the  receiver  was  confined  to  the  jurisdic- 
tional limits  of  the  tribunal  that  appointed  him.  The  court 
in  its  opin.on  say:  "There  are  certainly  dicta  that  go  even 
to  that  e-xtcnt,  so  that  text-writers  seem  to  have  felt  them- 
selves warranted  in  declaring  that  the  powers  of  an  officer  of 
this  U'ind  are  strictly  circumscribed  by  the  jurisdictional  limits 
of  the  tribunal  from  which  he  derives  his  existence,  and  that 
he  will  not  be  recognized  as  a  suitor  outside  of  such  limits. 
But  I  think  the  more  correct  delinition  of  the  legal  rule  would 
be  that  a  receiver  cannot  sue,  or  otherwise  exercise  his  func- 
tions, in  a  foreign  jurisdiction  whenever  such  acts,  if  sanc- 
tioned, would  interfere  with  the  policy  established  by  law  in 
such  foreign  jurisdiction.  There  seems  to  be  no  reason  why 
this  should  not  be  the  accepted  principle.  When  there  are  no 
persons  interested  but  the  litigants  in  a  foreign  jurisdiction, 
and  it  becomes  expedient,  in  the  progress  of  such  suit,  that  the 
property  of  one  of  them,  wherever  it  may  be  situated,  should 
be  brought  in  and  subjected  to  such  proceeding,  I  can  thmk 
of  no  objection  against  allowing  such  a  power  to  be  exercised. 
It  could  not  be  exercised  in  a  foreign  jurisdiction  to  the  disad- 
vantage of  creditors  resident  there,  because  it  is  the  policy  of 
every  government  to  retain  in  its  own  hands  the  property  of 
a  debtor  until  all  domestic  claims  against  it  have  been  satis- 
fied. But  be^-^ond  this  precaution,  why  should  any  restraint 
be  put  upon  the  foreign  procedure?"  And  where  citizens  of 
a  state  are  creditors  of  the  foreign  corporation  and  have  pro- 
say:  "Undoubtedly  the  general  rule  is,  19  N.  Y.  L'07."  In  Ward  v.  Pacific 
that  the  powers  of  a  receiver  are  co-  Mutual,  etc  Co.,  135  Cat  235,  67  Pac 
extensive  only  with  the  jurisdiction  124.it  was  held  that  though  a  re- 
of  the  court  which  appoints  him.  ceiver  of  one  state  is  sometimes. 
C,  M.  &  St.  P.  Ry.  Co.  V.  Packet  Co.,  through  comity,  allowed  to  sue  in 
108  111.317.  He  has  no  extra-terri-  another  state,  he  cannot  do  so  where 
torial  power  of  official  action.  But  the  claim  sought  to  he  enforced  con- 
a  receiver  appointed  in  one  state  fiicts  with  the  rights  of  citizens  or 
may,  by  comity,  be  permitted  to  re-  creditors  in  the  state  where  the  suit 
cover  tlie  po>session  of  property  in  is  brought;  that  the  burden  of  prov- 
another  state,  provided  no  citizen  or  ing  that  he  has  the  right  to  sue  is 
suitor  of  the  latter  state  is  thereby  upon  the  receiver.  Homer  v.  Barr 
prejudiced  or  injured.  High  on  Re-  et  al.,  180  Mass.  163,  61  N.  E.  883; 
ceivers,  sec.  47;  Hunt  v.  Columbian  Pepper  v.  Supreme  Court  Counsel, 
Ins.  Co.,  55  Me.  290:  Hoyt  v.  Thorn (>  etc.,  70  N.  Y.  &  637. 
son,  5  N.  Y.  320;  Hoyt  v.  Thompson, 


§  395. j  RECEIVERS.  555 

ceeded  by  attachment  against  the  corporation  and  acquired  a 
lien  upon  its  property  in  the  state  of  their  residenr-e,  the  ra 
ceiver  appointed  by  the  foreign  state  will  not  be  allowed  to 
deprive  them  of  their  rights,  and  the  court,  upon  the  principle 
already  mentioned,  will  protect  the  lien  acquired  by  its  own 
citizens  and  follow  out  its  own  policy  in  preference  to  assist- 
ing or  aiding  the  claim  or  right  asserted  by  the  receiver  of  the 
foreign  court. 

This  was  illustrated  in  Uvnt  v.  Insurance  Co.^  where  the 
court  in  its  opinion  said :  "  The  receivers,  who  assert  this  claim 
here,  are  merely  the  servants  of  the  court  in  New  York,  hav- 
ing legal  authority  co-extensive  only  with  the  jurisdiction  of 
the  court  by  whom  they  were  appointed.  Upon  principles  of 
comity,  olten  recognized  and  always  acted  on,  except  when 
they  come  in  conflict  with  paramount  rights  of  suitors  in  our 
courts,  they  might  be  admitted  here  to  protect  the  interests 
and  en  force  the  claims  of  the  corporation  of  whose  affairs  they 
are  the  legal  guardians  there.  But  comity  does  not  require  us 
to  permit  the  exercise  of  such  privileges  to  the  detriment  of 
our  own  citizens  who  are  pursuing  appropriate  legal  remedies 
in  this  court." 

This  doctrine  is  often  invoked  in  cases  for  the  foreclosure 
of  mortgages  upon  railroad  property  Where  the  defendant 
company's  property,  which  is  mortgaged,  is  located  in  several 
adjoining  states;  the  company  being  incorporated  in  each  of 
the  states,  the  courts  of  one  of  the  states  may,  in  a  proper 
case,  appoint  a  receiver  to  take  charge  of  the  entire  property 
of  the  company  thus  mortgaged,  and  will  be  recognized  by 
the  courts  of  the  several  states  in  which  the  property  is  lo- 
cated and  the  company  incorporated,  and  be  aided  in  carrying 
out  the  orders  of  the  court  appointing  him.^   And  in  cases  where 

J  55  Me.  290.  297.  to  apply  its  revenues,  the  only  means 
2 State  V.  North  Central  Ry.  Co.,  18  of  paying  tlie  annuity,  to  the  pay- 
Md.  193,  215,  where  a  mortgage  of  ment -f  junior  incumbrances.  The 
the  entire  line  of  defendant's  road,  line  of  railroad  mortgaged  extended 
with  all  tolls  and  revenues  thereof,  into  the  stateof  Pennsylvania.  The 
was  executed  to  the  state  of  Mary-  Maryland  court  was  asked  to  appoint 
land  to  secure  the  payment  of  an  an-  a  receiver  and  to  grant  a  writ  of  An- 
nuity, it  being  siiown  that  the  com-  junction.  The  court,  among  other 
pany,  in  violation  of  its  duty,  was  things,  say:  "Equity  will  appoint  a 
applying  and  intended  to  continue  receiver  at  the  instance  of  parties 


556 


BECEIVEBS. 


§  :^>i>S 


several  railroarls,  located  in  different  states,  are  consf)li(h«ted 
in  one  system  or  opernted  by  one  company.*  And  it  has  been 
held  that  where  ancillary  receivers  are  appointed  in  other  juris- 
dictions they  must  report  to  and  be  governed  by  the  court 


beneficially  interested  where  there 
is  no  fraud  or  spoliation,  if  it  can  be 
satisfactorily  established  there  is 
dan^^er  to  the  estate  or  fund  unless 
such  step  is  taken.  .  .  .  The  com- 
plainant occupies  the  relation  to  the 
respondents  in  this  case  of  second 
and  thud  incumbrancer;  the  sub- 
ject of  the  morte:age  is  not  suscepti- 
ble of  occupation  hy  the  complain- 
ant or  any  of  its  at^ents.  witiiout  the 
intervention  of  the  courts  of  this 
state  or  of  Pennsylvania;  the  relief 
prayed,  the  sale  of  the  railroad,  can- 
not be  effected  without  protracted 
litigation,  and  the  tolls  and  revenues, 
which  are  expressly  pledged,  are  in 
the  meantime  diverted  to  the  pay- 
men  t  of  debts  of  junior  obligation  and 
lien.  Besides  these  obstacles  to  tlie 
ordinary  remedies  of  a  mortgagee, 
the  greater  part  of  the  line  of  the 
railroad,  lying  without  the  state,  the 
tolls  and  revenues,  being  claimed  by 
adverse  creditors  or  subject  to  vari- 
ous conflicting  incumbrances,  can 
only  be  collected  and  held  by  an  of- 
ficer of  a  court  of  equity,  consist- 
ently with  the  rights  of  the  parties 
litigant.  .  .  .  The  mortgage  con- 
veying to  the  complainant  the  entire 
line  of  railroad  belonging  to  the  said 
company  .  .  .  with  all  the  rev- 
enue or  tolls  thereof,  it  becomes 
necessary  to  inquire,  in  order  to  de- 
termine the  extent  of  the  power  and 
duties  of  the  receiver,  what  passes 
under  the  mortgage  deed.  In  Sey- 
mour V.  Canandaigua  &  Niagara  Ry. 
Co.,  25  Barb.  309,  310,  where  a  rail- 
road company  executed  a  mortgage 
upon  its  railroad,  constructed  and  to 
be  constructed,  a  question  arose 
whether  the  branch  track  at  Toiia- 
wanda,  to  the  Niagara  river,  or  to 


the  docks  on  the  bank  of  the  river, 
passed.  This  branch  was  not  laid 
out  at  the  time  of  the  original  loca- 
tion or  mortgage,  and  was  not  then 
projected  or  located.  It  was  held  to 
be  covered  by  the  mortgai:e  as  an 
incident  to  the  (jrincipal  subject  of 
the  grant,  upon  the  maxim  that  who- 
ever grants  a  thing  is  supposed  tac- 
itly to  grant  tiiat  witimut  which  the 
grant  would  be  of  no  effect.  '  Wlien 
a  thing  is  granted,  all  the  means  to 
attain  it,  and  all  the  fruits  and  ef- 
fects of  it,  are  granted  also.  It  is  a 
rule  of  law  tliat  the  incident  pa.sse8 
by  the  grant  of  the  princifial;  what- 
ever is  essential  to  the  use  and  en- 
joyment of  the  principal  thing.'  " 

iln  Wilmer  v.  Atlanta,  etc.  Ry. 
Co..  2  VVooJs  (U.  S.).  409,  419,  where 
the  railroad  in  question  was  located 
in  three  different  states,  but  under 
proper  provisions  of  the  different 
legislatures  was  consolidated  with  its 
principal  office  at  Atlanta,  Georgia, 
the  property  having  fallen  into  the 
hands  of  two  different  receivers  ac- 
countable to  three  different  courts, 
the  court  under  such  circumstances 
appointed  one  receiver  to  take  charge 
of  the  property.  The  court  say:  "'As 
the  property  of  the  defen  lant  com- 
pany is  one  entire  and  indivisible 
thing,  and  as  it  is  all  covered  by  one 
deed  of  trust,  there  seems  to  be  no 
good  reason  why  this  court  should 
not  appoint  a  receiver  for  the  \vhole, 
even  though  a  part  of  the  property 
may  extend  into  another  state.  The 
court  having  jurisdiction  of  the  de- 
fendant can  compel  it  to  do  all  in  its 
power  to  put  the  receiver  in  posses- 
sion of  the  entire  property.  If  other 
persons  outside  the  territorial  juris- 
diction of  this  courr  have  sezed  the 


§  395.] 


RECEIVERS.  557 


makintr  the  original  appointment  as  to  all  matters  relating  to 
the  general  management  of  the  trust  and  the  general  operation 
of  t  he  property. 

In  Amesv.  Union  Pac.  Ry.  Co}  the  court  say:  "It  is  un. 
necessary  to  discuss  or  decide  here  whether  the  circuit  court 
sitting  in  Colorado  or  Wyoming  is  a  court  of  ancillary  juris- 
dictio'n  in  the  matter  of  this  receivership.     These  receivers  were 
first  appointed  in  this  court  sitting  in  Nebraska.     So  far  as  the 
general  management  of  the  trust  imposed  upon  them,  the  gen- 
eral operation  of  the  railroad  system  in  their  charge  in  this 
circuit,  and  their  general  accounting,  is  concerned,  they  must 
report  to  and  be  governed  by  this  court  sitting  in  Nebraska. 
The  impracticability  of  properly  administering  this  great  trust 
under  any  other  practice,  and  the  intolerable  confusion  which 
would  result  from  contradictory  orders  regarding  these  sub- 
jects made  in  the  ditferent  districts  in  the  circuit,  will  com- 
mend this  rule  of  practice  to  every  judge  within  the  Junslic- 
tion,  and  prevent  any   interference  or    modificatum    of    the 
orders  issued  in  these  matters  by  the  circuit  court  for  the  dis- 
trict of  Nebraska,  except  by  appeal  or  upon  rehearing;  but  the 
circuit  courts  in  the  districts  of  Colorado  and  Wyoming  h  .ve 
jurisdiction  to  hear  and  determine  the  claims  ol"  the  citizens  of 
those  districts  against  the  insolvent  corporation  and  the  re- 
ceivers of  it,  and  their  determination  of  tnos '  matters  will  be 
equally  respected  by  the  court  sitting  in  Nebraska.     Citizens 
of  one  district  will  not  be  required  to  go  to  another  district  to 
assert  their  claims  against  receivers  appointed  by  the  courts 
of  l)Oth  districts." 

The  relations  of  receivers  and  ancillary  receivers  have  been 
put  upon  the  same  basis  as  administrators  and  ancillary  ad- 
ministrators. In  discussing  this  question  the  United  States  su- 
preme court  has  said:  "  Where  a  receiver  or  administrator  or 
other  custodian  of  an  estate  is  appointed  by  the  courts  of  one 
state,  the  courts  of  that  state  reserve  to  themselves  full  and 

property  of  defendant,  the  receiver  courts  of  other  jurisdictions  would 

may  be  compelled  to  ask  the  assist-  feel    coiistrained,    as    a    matter    of 

anceot  the  courts  of  that  jurisdiction  comity,  to  afford  all  necessary  aid  in 

to  aid  him  in  obtainm-j;  possession,  their  power  to  put  the  receiver  of 

but  that  is  no  reason  wiiy  we  should  this  court  in  possession." 
hesitate   to  appoint  a    receiver   for        160  Fed.  966,  974:  Union  Trust  Ca 

the  whole  property.     We  tiiink  the  v.  Atchison,  etc.  ky.  Co.,  87  Fed.  530. 


55S  EECEIVER8.  [§  396. 

exclusive  jurisdiction  over  the  assets  of  the  estate  within  the 
limits  of  the  state.  Whatever  orders,  judgments  or  decrees 
may  be  rendered  by  the  courts  of  another  state,  in  respect  to 
so  much  of  the  estate  as  is  within  its  limits,  must  bo  accepted 
as  conclusive  in  the  courts  of  primary  administration;  and 
whatever  matters  are  by  the  courts  of  primary  administration 
permitted  to  be  litigated  in  the  courts  of  another  state  come 
within  the  same  rule  of  conclusiveness.  Beyond  this  the  pro- 
ceedings of  the  courts  of  a  state  in  which  ancillary  adminis- 
tration is  held  are  not  conclusive  upon  the  administration  in 
the  courts  of  the  state  in  which  primary  administration  is  had. 
And  this  rule  is  not  changed,  although  a  party  whose  estate  is 
being  administered  by  the  courts  of  one  state  permits  himself 
or  itself  to  be  made  a  party  to  the  litigation  in  the  other. 
Whatever  may  be  the  rule  if  jurisdiction  is  acquired  b}' a  court 
before  administration  proceedings  are  commenced,  the  moment 
they  are  commenced,  and  the  estate  is  taken  possession  of  by 
a  tribunal  of  a  state,  that  moment  the  party  whose  estate  is 
thus  taken  possession  of  ceases  to  have  power  to  bind  the 
estate  in  a  court  of  another  state,  either  voluntarily  or  by  sub- 
mitting himself  to  the  jurisdiction  of  the  latter  court."' 

§  :>%.  Interference  with  receivers —  Contempt  of  court. 
The  entire  conduct  of  the  estate  of  the  defendant  over  which 
a  receiver  has  been  appointed  is  in  the  hands  and  under  the 
control  of  the  court.  The  receiver,  as  has  been  said,  is  the 
hand  of  the  court.     He  is  the  officer  and  the  airent  through 

>  Reynolds  v.  Stockton,  140  U.  S.  rights  or   liens    on    local    assets,  it 

254,  273.     Where  a  receiver  lias  been  would  make  no  distinction  between 

appointed  for  a  foreign   building  as-  foreign  and  domestic  creditors;  the 

sociation  in  its  domicile  .«tate,  it  lias  claims  stand  on  equal  footing,  and 

been    held  no  objection  to  the   ap-  that  the  court  in  its  discretion  could 

pointment  of  a  receiver  to  marshal  distribute  the  assetsin  its  control  or 

the  assets  in  another  state,  it  being  transmit   them    to  the   primary  re- 

for  the  court  to  decide  whether  the  celver.     Southern  Building  &  Loan 

affairs  of  the  insolvent  could  be  con-  Ass'n  v.  Price.  88  Md.  155,  41  Atl.  53. 

ducted  more  equitably  thus,  or   by  42  L.  R.  A.  206:  Witters  v.  Bank,  171 

the  appointment    of  a    foreign   re-  Mass.  42.5.     In  Re  Brant,  96  Fed.  257, 

ceiver  to  act  in  the  state.     Security,  it   was   held    that   an  ex  parte   ap- 

etc.  Ass'n  v.  Moore,  151  Ind.  174,50  plication  of  an  ancillary  receiver  will 

N.  E.  869.     In  Sands  v.  E.  S.  Greeley  not  be  entertained  except  in  a  pend- 

&  Co.,  ;U  C.  C.  A.  424,  88  Fed.  UO,  it  ing  suit     Greene  v.  Star  Cash,  etc 

was  held  that  while  the  court  would  Co.,  99  Fed.  656. 
protect  local  creditors  having  prior 


^  39().J  RECEIVERS.  559 

whom  the  court  executes  its  orders,  and  in  the  lawful  execu- 
tion of  the  court's  orders  he  is  a  part  of  the  court.  It  there- 
fore follows  that  any  interference  with  this  officer,  the  receiver, 
in  the  execution  of  the  court's  orders  will  be  punished  by  the 
court  as  for  a  contempt.  This  is  a  rule  in  the  interest  of  the  due 
administration  of  justice  and  is  inflexible.  The  court  will  pro- 
tect its  officer  in  the  administration  of  his  duty.  And  it  is 
said  that  the  interference  will  be  punished  as  contempt,  even 
if  the  order  appointing  a  receiver  was  erroneous  or  im provi- 
dently made,  for  the  court  will  not  review  the  questions  which 
were  passed  upon  when  the  receiver  was  appointed  in  a  pro- 
ceeding to  punish  for  contempt.  The  only  question  to  be  con- 
sidered is,  was  there  an  interference  with  the  possession  of  the 
receiver  appointed  under  a  subsisting  order.  The  court  will 
not  allow  the  possession  of  the  receiver,  which  is  that  of  the 
court  itself,  to  be  disturbed  by  any  one  without  its  permission.^ 
The  same  rule  obtains  as  that  which  is  recognized  in  violation 
of  injunctions.  The  liability  is  in  no  way  dependent  upon  the 
regularity  or  legality  of  the  appointment.  While  the  order 
continues  in  existence  the  court  requires  that  it  shall  receive 
implicit  obedience.'^     And  so  jealously  and  carefully  does  the 

1  Albany  City  Bank  v.  Scliermer-  interfere  with  the  possession  of  a  re- 
horn,  9  Paige  Ch.  372;  Cook  v.  City  ceiver,  or  to  disobey  an  injunction, 
Nat.  Bank,  73  Ind.  256:  Noe  v.  Gib-  or  any  other  order  of  the  court,  on 
son,  7  Paige  Ch.  513;  Richards  V.  Peo-  the  ground  that  such  orders  were 
pie,  81  III.  551.  Lord  Truro  in  Russell  improvidently  made.  Parties  must 
V.  East  Anglian  R  Co.,  3  Mac.  &  G.  take  a  proper  course  to  question 
104,  116,  in  a  proceeding  involvmg  their  validity,  but  while  tliey  exist 
this  question,  said:  "I  have  looked  they  must  be  obeyed.  I  consider  the 
with  care  through  the  very  numer-  rule  to  be  of  such  importance  to  the 
ous  authorities  that  have  been  cited,  interests  and  safety  of  tlie  public, 
but  it  is  not  necessary  for  me  to  go  and  to  the  due  administration  of 
through  them.  The  result  appears  justice,  that  it  ought  on  all  occ-asions 
to  be  this:  that  it  is  an  establislied  to  be  inflexibly  maintained.  I  do  not 
rule  of  tliis  court  tliat  it  is  not  see  how  the  court  can  expect  its 
open  to  any  party  to  question  tiie  officers  to  do  their  duty,  if  they  do  it 
orders  of  tliis  court,  or  any  process  under  the  peril  of  resistance,  and  of 
issued  under  tlie  authority  of  this  that  resistance  being  justified  on 
court,  by  disobedience.  I  know  of  grounds  tending  to  the  impeachment 
no  act  which  this  court  may  do  of  the  order  under  which  they  are 
which   may  not  be  questioned  in  a  acting." 

proper  form,  and  on  a  proper  appli-        ^  Moat  v.  Holbein,  2  Ed  .v.  Ch.  (N. 

cation;   but   I  am   of  opinion    that  Y.)  188;  Sullivan  v.  Judah,  4  Paige 

it  is  not  competent  for  any  one  to  Ch.  444. 


500  RECEIVKBfl.  [§  396. 

court  guard  its  possession  and  right  to  possession  v>f  the  receiver 
under  its  orders  that  it  will  allow  no  interference  even  where 
the  receiver  has  not  yet  reduced  the  property  to  his  possession, 
and  if  the  person  alleged  to  have  interfered  had  actual  notice 
of  the  order  of  the  court,  although  the  same  had  not  yet  been 
formally  entered,  he  will  be  punished  for  contempt.* 

Actual  notice  of  the  appointment  of  a  receiver  is  sufficient. 
A  formal  notice  is  not  n^'cessary.  As  we  have  seen,  it  is  the 
duty  of  the  defendant  to  surrender  his  property  to  the  receiver 
pursuant  to  the  order  of  the  court,  and  when  he  refuses  to  do 
so,  or  when  in  any  way  he  impedes  or  hinders  the  receiver 
from  obtaining  possession  under  the  order  of  the  court,  he  is 
guilty  and  may  be  punished  for  contempt.-'  P>utthe  defendant 
is  always  entitled  to  be  heard  as  to  his  possession  or  control  of 
the  property,  and  so  it  is  the  duty  of  the  receiver  by  proper 
proceedings  to  determine  what  property  is  under  the  defend- 
ant's power  and  control,  and  thus  obtain  from  the  master  an 
order  directing  the  deientlant  to  deliver  the  property  thus 
designated  by  the  master  before  he  can  be  brought  into  con- 
tempt for  disobeying  the  order  of  the  court;  because  the 
defendant  is  entitled  to  have  an  opportunity  to  produce  wit- 
nesses for  the  purpose  of  showing  that  the  property  was  not 
in  his  possession  or  under  his  legal  control,  and  also  to  enable 
him  to  appeal  to  the  court  if  the  decision  of  the  master  is 
claimed  to  be  wrong.'   And  where  in  a  foreclosure  proceeding 

1  In  Hull  V.  Tiiomas.   3   Edw.  Ch.  were  absent  when  the  order  was  pro- 

(N.   Y.I   2i6,  where  the   defendants  nounced.     The  lord  chancellor  said: 

were  held  guilty  of  a  conten»|'t  in  "If  these  parties  by  tlieir  attendance 

having  known    that  an   injunction  in    court    were  apprised   tliat  theie 

was  to  issue  and  a  receiver  to  be  ap-  was  an  order,  that  is  sufficient;  and 

pointed,  although  the  order  was  not  1  cannot  attend  to  a  distinction  90 

entered   or   the  process  served,  the  thin,  as  that  persons,  standing  her-* 

court   say  these  parties  acted  con-  until  the  moment  the  lord  chancel- 

trary  to  the  order  which  the  court  lor  is  about  to  pronounce  the  order, 

pronounced  after  they  had  been  told  which    from   all    that   passed    they 

of  it  by  the  defendant;  they  realized  must  know  will  be  pronounced,  can, 

money  upon  the  notes  in  order  tode-  by  getting  out  of  the  hall  at  this  in- 

feat  the  ol).)ect  of  the  order     They  stant.  avoid  all  the   consequences."' 

must   be  adjudged   guilty    of  con-  Skip  v.  Harwood,  3  Atk.  (Eng.)  564. 

tempt.     In    Hearn    v.    Tennant,   14  2  People  v,  Rogers.  2  Paige  Ch.  103. 

Ves.  136,  a  motion  was  made  for  an  ^Cassilear  v.  Simons,  8  Paige  Gj. 

injunction  while  the  defendant  and  (N.  Y.)  ^73. 
his  attorney  were  in  court,  but  they 


§  397.]  RECEIVERS.  561 

a  receiver  had  been  appointed  and  an  order  entered  requiring 
a  lessee  of  the  premises  to  pay  over  to  such  receiver  any  rents 
which  she  may  have  collected  from  the  monthly  tenants  accru- 
ini^  since  a  certain  date,  it  was  held  the  lessee  could  not  be 
adjudged  guilty  of  contempt  of  such  order  for  not  paying  over 
money  collected  for  rents  which  accrued  on  the  date  men- 
tioned, as  it  was  not  a  violation  of  the  order.*  Questions  of 
some  difficulty  sometimes  arise  where  two  different  receivers 
appointed  in  different  actions  are  claiming  possession  of  the 
property  of  the  defendant.  In  such  case  the  court  will  hesi- 
tate to  exercise  its  extreme  power  by  commitment  for  inter- 
ference with  the  possession  of  the  Hrst  receiver  by  the  second. 
The  question  in  such  case  to  be  determined  is  one  of  priority, 
which  is  determined  by  reference  to  the  date  of  the  appoint- 
ment of  the  receivers.  And  in  determining  the  priority  as 
between  the  receivers  it  has  been  held  that  the  court  will  not 
take  notice  of  the  fractions  of  a  day.^  And  so  in  a  controversy 
between  two  receivers  over  the  question  of  possession,  the 
question  of  priority  was  determined  adversely  to  the  receiver 
in  possession;  he  was  not  punished  for  disobedience  to  the 
order  of  the  court  appointing  the  other  receiver.*  Proceed- 
ings for  punishment  for  contempt  will  only  be  entertained  by 
the  court  which  made  the  appointment. 

§  3!)7.  Procedure  in  cases  for  contempt. —  The  procedure 
in  cases  for  contempt  is  generally  fixed  by  statute  or  rules  of 
court  in  the  different  jurisdictions.  The  chancery  courts  usu- 
ally follow  the  early  New  York  practice  where  one  of  two 
modes  of  procedure  were  pursued:  when  the  misconduct  com- 
plained of  is  not  committed  in  the  immediate  view  and  pres- 
ence of  the  court,  and  when  the  disobedience  does  not  consist 
in  violation  of  an  order  for  the  payment  of  money  or  the  dis- 
ob.dience  to  a  subpoena.  "One  of  the  prescribed  modes  is  by 
an  or  ler  on  the  accused  party  to  show  cause,  at  some  future 
time  to  be  specified  in  the  order,  why  he  should  not  be  pun- 
ished for  his  alleged  misconduct;  and  the  other  is  to  grant  an 
attachment  to  arrest  the  accused  and  bring  him  before  the 
court  to  answer  for  such  misconduct.     In  either  mode  of  pro- 

>  Moore  v.  Smith,  74  N.  Y.  S.  1089.  'People  v.  Central  City  Bank.  53 

2  Worth  V.  Piedmont  Bunk,  121  N.  Barb.  412;  Ward  v.  Swift,   6   Hare, 

C.  343,  28  S.  E.  48a  30a 
36 


562  EECEIVEKS.  [i  397. 

ceeding,  however,  the  party  complaining  of  the  allegfMl  mis- 
coniluct  must  produce  proof  tliereof,  by  allidiivits,  or  a  sworn 
petition,  or  other  legal  evidence,  as  the  foundation  of  the  pro- 
ceedings. Where  the  party  proceeds  by  an  onler  to  show 
cause,  copies  of  the  order  and  of  the  alKdavits  and  other 
papers  on  which  it  is  founded,  and  of  such  other  docu- 
mentary evidence  as  the  prosecutor  wishes  to  use  in  the 
case,  or  as  much  thereof  as  is  not  already  in  the  possession  of 
the  accused,  must  be  served  on  him,  or  on  his  solicitor,  sueh 
length  of  time  previous  to  the  day  appointed  for  showing 
cause  as  the  court  shall  in  such  order  direct.  And  then  if  the 
party  accused  does  not  appear  at  the  day  appointed,  or  at  such 
other  day  as  may  be  afterwards  designated  for  that  purpose, 
or  if  he  appears  and  does  not  deny  the  alleged  miscontluct, 
the  court  may  at  once  proceed  to  make  a  final  decision,  tiiat 
the  accused  has  been  guilty  of  the  contempt  charged,  and  to 
award  the  proper  punishment.  ...  If  the  alleged  mis- 
conduct is  denied  the  court  may  discharge  the  order  to  show 
cause;  or  may  allow  interrogatories  to  be  filed  and  refer  it  to 
a  master  to  take  the  answers  of  the  accused  to  such  interroga- 
tories, and  to  take  such  proof  as  either  party  may  wish  to  offer, 
and  report  the  same  to  the  court.  But  the  proofs  themselves 
should  be  reported  to  the  court,  and  not  merely  the  master's 
opinion  thereon."  * 

The  usual  practice,  however,  is,  at  this  stage  of  the  proceed- 
in^',  for  the  court  to  hear  the  answer  of  the  accused  and  the 
proofs  adduced  by  either  party,  and  to  determine  from  the  af- 
fidavits and  the  answer  of  the  defendant  and  the  proofs  ad- 
duced whether  the  accused  has  been  guilty  of  the  alleged 
misconduct. 

The  second  proceeding  is  by  attachment,  where,  upon  filing 
a  petition  and  affidavits,  the  court  will  issue  its  writ  of  attach- 
ment to  bring  the  defendant  into  court  to  answer  the  con- 
tempt proceedings.  If  the  defendant  is  brought  into  court  b^' 
the  writ  of  attachment,  or  voluntarily  appears  and  does  not 
admit  the  facts  alleged  which  render  him  guilty  of  contempt, 
the  court  will  cause  interrogatories  to  be  filed  specifying  the 
facts  and  circumstances  of  misconduct  alleged  against  the  de- 

1  Albany  City  Bank  v.  Schermerhorn,  9  Paige  Ch.  (N.  Y.)  372,  373. 


§  397.]  RECEIVERS.  5G3 

fendant,  and  require  his  answer  thereto.     And  "this  appears 
to  be  absolutely  necessary  in  a  proceeding  by  attachment,  un- 
less the  defendant  admits  the  alleged  contempt.     Upon  such 
interrogatories  being  filed  and  answered,  the  court  may  pro- 
ceed in  a  summary  manner  to  decide  the  question  as  to  the 
guilt  of  the  accused;  or  may  refer  it  to  a  master  to  take  the 
answers  of  the  defendant  to  the  interrogatories,  and  to  take 
and  report  such  other  evidences  as  either  party  may  wish  to 
produce  before  him  relative  to  the  contempt."^     Or  the  court 
may  take  the  answer  of  the  defendant  in  open  court  and  such 
evidence  as  the  respective  parties  may  produce  relative  to  the 
contempt,  and  proceed  to   make  its  order  finding  the  party 
guilty  or  not  guilty  of  the  contempt,  and  in  case  he  is  found 
guilty  to  adjudge  the  punishment  for  the  contempt.  The  order 
upon  the  conviction  should  be  clear  and  explicit;  it  should  re- 
cite the  substance  of  the  alleged  misconduct,  the  adjudication 
of  the  court  that  the  accused  has  been  guilty  of  the  contempt, 
and  show  that  his  misconduct  was  calculated  to,  and  did,  im- 
pair, defeat,  impede  and  prejudice  the   rights  or  remedies  of 
the  prosecution  or  the  cause  of  the  parties,  and  may  impose  a 
fine  sufficient  to  indemnify  them  and  to  satisfy  the  costs  and 
expenses.     If  anything  further  ought  in  justice  and  equity  to 
be  done  by  the  party  guilty  of  the  contempt,  the  order  should 
particularly  specify  what  he  is  to  do  and  the  manner  in  which 
it  is  to  be  done.     In  case  a  fine  is  imposed,  the  order  should 
direct  to  whom  it  is  to  be  paid;  and  should  be  sufficiently 
definite  and  explicit  to  show  the  nature  of  the  conviction  and 
what  the  defendant  is  called  upon  to  do  in  order  to  discharge 
himself  from  it;  and  it  may  go  to  the  extent  of  imprisoning 
the  defendant  until  he  has  purged  the  contempt  by  a  full  com- 
pliance with  the  order  of  the  court.^ 

1  Albany  City  Bank  v.  Schermerhorn,  9  Paige  Ch.  372,  378. 
'People  V.  Rogers,  2  Paige  Ch.  103,  104;  2  Barb.  Ch.  Pr.  (2d  rev.  ed.)  275, 
276,  etc 


CHAPTER  XX. 


INJUNCTIONa 


5  398.  The  remedy. 
B99.  Cases  in  which  the  court  will 
not  grant  an  injunction. 

400.  Cases  in  which  courts  of  equity 

will  allow  injunctions. 

Several  Kinds  of  Injunctions. 

401.  Kinds  of  injunctions. 


Procedore. 

§  403.  The  bill  of  complaint 

403.  Obtaining  the  writ. 

404.  The  order,  writ  or  interlocu- 

tory decrea 

405.  Injunction  bond. 

406.  Dissolution  or  modification  of 

the  injunction. 


§  398.  The  reniedj. —  The  injunction  belongs  to  the  second 
class  of  equitable  remedies  which  are  mandatory  in  that  they 
command  that  to  be  done  which  the  court  deems  to  be  essen- 
tial to  justice;  prohibitory  and  protective  in  that  they  forbid 
and  enjoin  all  acts  that  are  contrary  to  equity  and  good  con- 
science and  preserve  and  protect  the  rights  and  interests  of  the 
parties.  An  injunction  may  be  defined  to  be  a  discretionary 
writ  founded  upon  the  exigencies  of  the  particular  case  alleged 
in  the  bill  of  complaint,  commanding  the  defendant  to  do,  or 
refrain  from  doing,  a  particular  thing.* 

The  writ  of  injunction  is  not  a  writ  in  rem;  it  is  directed  to 
the  person,  enjoining  and  restraining  or  commanding  him  to 
do  or  refrain  from  doing  certain  acts  respecting  the  thing. 
This  writ  is  sometimes  called  the  right  arm  of  the  court  of 
chancery.  It  is  used  to  restrain  a  premeditated  or  threatened 
act  which  might  result  in  irreparable  injury  which  could  not 
be  adequately  compensated  for,  and  for  which  there  is  no  com- 
plete and  adequate  remedy  at  law.  "  In  theory  its  purpose  is 
to  prevent  irreparable  mischief;   it  stays  an  evil  the  conse- 


1  Judge  Story  defines  an  injunc- 
tion to  be  "a  judicial  process  whereby 
a  party  is  required  to  do  a  particular 
thing,  or  to  refrain  from  doing  a  par- 
ticular thing,  according  to  the  exi- 
gencies of  the  writ."  2  Story.  Eq. 
Jur.,  sec.  861.     Jeremy  defines  it  to 


be  "a  writ  framed  according  to  the 
circumstances  of  the  case,  command- 
ing an  act  which  the  court  regards 
essential  to  justice,  or  restraining  an 
act  which  it  esteems  contrary  to 
equityand  good  conscience."  Jer  my, 
Eq.  Jur.,  ch.  J,  s-c.  1. 


§  ?>9^'\  INJUNCTIONS.  506 

<juences  of  which  could  not  adequately  be  compensated  if  it 
were  suffered  to  jro  on.'"  It  is  said  that  the  writ  "is  not  ex 
dehito  justiti(je^  for  any  injury  threatened  or  done  to  the  estate 
or  rights  of  a  person,  but  the  granting  of  it  must  always  rest 
in  sound  discretion,  governed  by  the  nature  of  the  case."' 
And  in  another  case  that  "an  injunction  is  not  of  right  but  of 
grace;  and  to  move  an  upright  chancellor  to  interpose  this 
strongest  arm  of  the  law,  he  must  have  not  a  sham  case,  but  a 
well  grounded  complaint,  the  hona  fides  of  which  is  unques- 
tioned or  capable  of  vindication  if  questioned."'  The  exercise 
of  this  power  is  a  delicate  one  and  is  said  to  require  the  great- 
est caution,  deliberation  and  sound  judgment.* 

In  allowing  the  writ  to  issue,  "the  court  looks  beyond  the 
actual  injury  to  contemplate  the  consequences,  and  however 
palpable  may  be  the  wrong,  it  will  still  balance  the  incon- 
veniences of  awarding  or  denying  the  writ,  and  adjudge  as 
these  may  incline  the  judicial  mind.  Even  in  the  case  of  a 
palpable  violation  of  a  public  right  to  the  annoyance  of  an  in- 
dividual, he  must  show  the  equity  which  requires  this  sum- 
mary interference  as  the  only  adequate  means  of  obtaining 
justice."* 

The  writ  is  a  harsh  one,  in  that  it  operates  to  stop  the 
proceeding  or  the  doing  of  an  act  against  which  it  is  di- 
rected until  the  further  order  of  the  court,  and  because  of 
its  harsh  and  sometimes  damaging  effect,  the  court  in  exer- 
cising its  discretionary  power  should  proceed  with  great  care 
and  deliberation.  It  should  clearly  appear  that  some  well- 
recognized  principle  of  law  or  equity  is  being  violated;  not 
that  the  court  should  require  a  case  which  would  entitle  the 
plaintiff  to  relief  at  all  events,  but  that  it  should  at  least  be  a 
case  where  it  clearly  appears  that  the  transaction  is  a  proper 
subject  for  investigation  in  a  court  of  equity,  and  where  in  the 
exercise  of  sound  judgment  and  deliberation  it  appears  to  the 

1  Edwards  v.  Allouez  Mining  Ca,  *  Judge  Cooley  in  Edwards  v.  Al- 
88  Mich.  46.  49.  louez   Mining   Co.,  38   Mich,  48,  oO, 

2  Enfield,  etc.  Co.  v.  Connecticut  citing  Grey  v.  Ohio,  etc.  Ry.  Co.,  1 
River  Co.,  7  Conn,  50,  Grant  (Pa.),  412;  Varney  v.  Pope,  60 

J  Kenton  V.  Railway  Co.,  54  Pa.  St.  Me.  192;  Bosley  v.  McKim.  7  Har.  & 

401,  454.  J.  46S;  Sparhawk  v.  Union  Pao.  Ry. 

*  Bonaparte  v.  Camden,   etc.    Ry.  Ca,  54  Pd.  St  401. 
Co.,  Baldwin  (U.  S.),  218. 


666  INJUNCTIONS.  [§  399. 

court  that  the  case  is  one  in  which  it  should  interfere  and  ])re- 
serve  the  property  in  statu  quo  during  the  pendency  of  the 
suit  in  which  the  rights  of  the  parties  to  the  property  are  to  bo 
decided.!  It  has  been  said  that  the  granting  or  refusing  of 
equitable  relief  by  way  of  injunction  depends  upon  the  partic- 
ular facts  in  each  case,  and  to  a  great  extent  is  discretionary 
with  the  court  where  it  originates.^ 

§  399.  Cases  in  which  the  court  will  not  grant  an  injunc- 
tion. —  The  granting  of  an  injunction  resting  in  the  sound  dis- 
cretion of  the  court  precludes  the  possibility  of  enumerating 
all  the  cases  in  which  a  court  will  refuse  the  remedy,  but  there 
are  certain  conditions  and  facts,  if  not  formulated  and  fixed 
rules,  which  when  they  exist  in  a  given  case,  the  court  will  re- 
fuse the  remedy. 

(1)  TTie  court  will  not  grant  an  injunction  unless  the  right  it 
aims  to  secure  can  he  determined  in  advance.  Where  the  bill 
was  filed  by  one  of  two  proprietors  of  a  common  stairway  be- 
tween two  adjoining  buildings  to  enjoin  the  defendant,  the 
other  proprietor,  "from  annoying,  hindering,  disturbing,  or 
in  any  way  interfering  with  the  enjoyment  and  use  of  tbe 
stairs  by  complainant  and  his  tenants,  and  from  tearing  down, 
removing,  or  in  any  way  injuring  or  disturbing  any  sign  or 
signs  which  complainant  or  his  tenants  may  put  up,"  the 
court  said:  "But  there  is  a  further  difficulty  which  seems  to 
us  to  be  a  justification  of  the  action  of  the  circuit  court  in  re- 
fusing to  issue  a  perpetual  injunction.  The  right  which  was 
designed  to  be  secured  by  it  was  a  right  the  limits  of  which 
could  not  be  determined  in  advance,  so  that  an  injunction 
would  be  more  likely  to  breed  litigation  than  to  close  it.  Mani- 
festly the  court  could  not  enjoin  defendants  from  interfering 

»Nishbet  v.  Sawyer,  66  Ga.  256;  right."  .   .    .   The  other  is.  "whether 

Great  Western  Ry.  Co.  v.  Birming-  interim  interference  on  a  balance  of 

ham   Ry.   Co.,   2   Ph.    Rep.    603.     In  convenience  and   inconvenience   to 

Shrewsbury  v.  Shrew.sbury  &  R  Ry.  the  one  party  and  to  the  other  is  or 

Co.,  1  Sim.  (N.  S.)  410.  426.  the  vice-  is  not  expedient" 

chancellor    says:    "There    are    two  2 Brass  v.  Rathbone,  153  N.  Y.  435, 

points  on  which  the  court  must  sat-  47  N.  &  905.     And  in  Nashville,  etc. 

isfy  itself:  first,  it  must  satisfy  itself,  Ry.  Co.  v.  McConnell,  82  Fed.  65,  it 

not  that  the  plaintiff  has  certainly  a  was  said  that  the  fact  that  the  case 

right,  but  that  he  has  a  fair  question  is  a  novel  application  of  the  writ  is 

to  raise  as  to  the  existence  of  such  a  not  sufficient  to  prevent  its  issua 


§  399.]  INJUNCTIONS.  567 

with  'an\'  sign  or  signs'  complainant  or  his  lessees  might  put 
up  along  the  common  passage-way.  They  might  choose  to  put 
up  such  as,  from  their  size  or  what  was  upon  them,  they  could 
not  be  justified  in  erecting.  Their  right  in  this  regard  must 
be  governed  by  what  is  customary  and  reasonable;  they  can- 
not go  beyond  this.  But  to  issue  an  injunction  in  that  indefinite 
form  would  be  laying  down  no  more  certain  rule  than  the  law 
prescribes  now;  and  a  question  might  be  raised  for  this  court 
to  decide  in  every  instance  in  which  a  sign  was  proposed, 
whether  it  was  reasonable  and  proper  that  it  should  be  put 
up."» 

(2)  The  court  will  not  grant  an  injunction  to  protect  one  from 
an  apparent  injury  which  may  at  any  time  he  legalized.  A  pro- 
ceeding  by  injunction  in  such  a  case  would  be  considered  a 
vain  thing  and  without  any  justifiable  purpose;  for,  although 
the  act  might  apparently  be  one  demanding  the  interposition 
of  the  court,  if  in  reality  the  defendant  could  at  any  time 
legali/.e  his  action,  it  would  completely  answer  the  complaint  of 
the  plaintiff.  And  so  where  a  defendant  had  a  subsisting  right 
of  rtowage  for  saw-mill  or  grist-mill  purposes,  and  a  grant  con- 
veying the  right  to  keep  up  a  mill-dam  at  a  specified  height 
and  imposing  no  restrictions  on  the  use  of  it,  it  was  held  that 
a  court  of  equity  would  not  interfere  to  protect  the  complain- 
ant against  an  injury  that,  because  of  the  rights  of  the  defend- 
ants, might  be  made  lawful  if  they  chose  to  do  so.^ 

So  where  a  railroad  company  had  in  good  faith  obtained 
an  assessment  of  damages  by  a  jury  on  land  which  was  neces- 
sary for  their  railroad,  and  afterwards,  and  while  the  confirma- 
tion of  the  inquisition  was  still  pending  in  the  supreme  court, 
tendered  the  damages  assessed  and  proceeded  to  use  the  land, 
the  court  refused  to  enjoin  them  from  constructing  the  rail- 
road upon  it  although  the  proceedings  to  condemn  the  land 
were  not  valid  until  confirmed,  for  the  reason  that  they  could 
not  be  prevented  from  finally  obtaining  the  land  and  thus  le- 
galizing their  rights  to  enter  upon  it  for  the  purpose  for  which 
it  had  been  condemned.  The  chancellor  said:  "If  the  court 
had  power  to  restrain  the  company  from  taking  the  land  at  all, 
under  their  charter,  I  would  allow  the  injunction.     But  this  it 

1  Bennett  v.  Seligman,  32 Mich.  500,  501 ;  Bradfield  v.  Dewell,  48  Mich.  9,  32. 

2  Hathaway  v.  Mitchell,  34  Mich.  164. 


568 


IXJUNCriONS. 


[§  399. 


cannot  do.  The  eflPect  of  the  injunction  would  be  only  to  ar- 
rest the  construction  of  the  road  until  the  company  obtained  a 
right  to  the  land,  in  the  manner  pointed  out  in  their  charter."  ^ 

(3)  The  court  will  not  grant  an  injunction  when  there  is  a 
complete  and  adequate  remedy  at  law.  The  injunction  is  an 
equitable  proceeding  and  can  only  be  allowed  in  an  equitable 
case.  Equity  will  only  take  cognizance  of  a  case  where  the 
injury  complained  of  is  irreparable,  and  so  if  the  wrong  or  in- 
jury sought  to  be  restrained  is  not  an  irreparable  injury,  or  if 
there  is  an  adequate  remedy  at  law,  the  court  of  equity  will 
not  proceed  against  it  nor  grant  an  injunction  restraining  the 
act.^ 

So  it  has  been  held  that  an  injunction  will  not  be  granted 
to  restrain  the  collection  of  a  franchise  tax  of  a  foreign  cor- 
poration where  the  inability  of  the  corporation  to  pay  the  tax 
does  not  appear,  or  of  the  defendant  to  respond  in  judgment  if 
the  tax  be  held  to  have  been  illegally  exacted  and  no  special 
circumstances  alleged  justifying  the  exercise  of  equitable  juris- 
diction other  than  consequences  which  the  complainant  can 
easily  avert  without  loss  or  injury  by  paying  the  tax;'  nor 


1  Mercer  v.  Williams  et  al.,  Walk. 
Ch.  (Mich.)  85,  89;  Toledo  &  Ann  Ar- 
bor Ry.  Co.  V.  Detroit,  L.  &  N.  Ry. 
Co.,  63  Mich.  645. 

2  In  State  v.  Capital  City  Dairy  Co., 
62  Ohio  St.  123,  56  N.  E.  651,  it  was 
held  that  the  court  would  not  allow 
an  injunction  at  the  suit  of  an  in- 
spector employed  by  the  dairy  and 
food  commissioner  to  compel  a  man- 
ufacturer and  seller  of  an  article  of 
food  or  drink  to  furnish  for  analysis 
samplesof  the  articles  manufactured 
or  sold,  as  provided  by  statute,  be- 
cause the  remedy  for  refusal  is  by 
prosecution  under  the  statute.  In 
Eidemiller  Ice  Co.  v.  Guthrie.  42  Neb. 
238,  28  K  R.  A.  581,  588,  the  court 
say:  "If  the  action  for  damages  will 
afford  ad-quate  relief  —  compensa- 
tion in  full  for  tlie  injury  inflicted  — 
it  will  suffice,  and  an  action  for  in- 
junction will  not  be  entertained.  It 
is  a  well-settled  general  rule  that  the 


remedy  by  injunction  will  not  be 
granted  unless  the  plaintiff  is  about 
to  suffer  an  irreparable  injury,  or 
one  for  which  there  is  not  an  ade- 
quite  remedy  at  law.  Tigard  v. 
Moffi  ,  13  Neb.  565;  High,  Inj.,  p.  28. 
An  irreparable  injury,  within  the 
meaning  of  the  law  of  injunctions, 
has  been  defined  by  Pearson,  J.,  in 
Gause  v.  Perkins,  56  N.  C.  177,  69  Am. 
Dec.  728,  as  follows:  "The  injury 
must  be  of  a  peculiar  nature,  so  that 
compensation  in  money  cannot  atone 
for  it;  where,  from  its  nature,  it  may 
be  thus  atoned  for,  if  in  the  particu- 
lar case  the  party  be  insolvent,  and 
on  that  account  unable  to  utone  for 
it,  it  will  be  considered  irreparable." 
3  Arkansas,  etc.  Ass'n  v.  I^ladden, 
175  U.  &  269,  44  L.  Ed.  159.  In  Safe 
Deposit,  etc.  Co.  v.  City  of  Anniston, 
QP,  Fed.  661,  it  was  held  that  where 
there  is  an  adequate  remedy  by 
mandamus  the  court  will  not  enjoin 


§  399.  j  INJUNCTIONS.  569 

will  an  injunction  be  granted  merely  to  adjudge  and  settle 
ricrhts  between  the  parties.^  Because  of  the  rule  that  equity 
will  not  grant  an  injunction  where  there  is  a  complete  and 
adequate  remedy  at  law,  an  injunction  will  not  be  granted  to 
enjom  the  commission  of  a  trespass  merely.^  But  to  this  rule 
there  a.-c;  exceptions.  Where  the  injury  complained  of  is  a 
continuing  one,  to  redress  which  numerous  suits  at  law  would 
have  to  be  brought  from  time  to  time,  the  court  will  interpose 
by  its  writ  of  injunction.'  And  so  to  avoid  a  multiplicity  of 
suits  a  court  of  equity  will  restrain  threatened  trespass  by  a 
large  number  of  persons  on  plaintiff's  lands,  even  though  such 
trespasses,  if  they  were  committed,  would  afford  the  plaintiff  a 
remedy  at  law.*  And  where  trespasses  are  alleged  to  be 
repeated,  continuing  and  ruinous,  and  the  damages  arising 
from  them  irreparable,  the  court  will  grant  an  injunction  to 
restrain  such  acts.' 

For  trespass  upon  mines  where  the  mineral  is  being  taken 
out  and  thus  continuously  destroying  the  property,  courts  of 
equity  have  allowed  injunctions  with  greater  liberality  than 
in  cases  of  ordinary  trespass  upon  lands,  for  it  has  been  gener- 
ally conceded  that  the  injuries  in  such  cases  are  irreparable,  as 
they  subtract  from  the  very  substance  of  the  suit  and  tend 
ultimately  to  destroy  it.® 

a  municipal  corporation,  though  in-  Pac  166;  Boston,  etc  Ry.  Co.  v.  Sul- 

Bolvent,  from  using   its  funds,   nor  livan,  177  Mas&  230,  58  N.  K  689. 

will  a  court  of  equity  subject  its  *  Strawberry  Valley  Cattle  Co.  v. 

funds  to  the   payment  of  a  judg-  Chipman,  13  Utah,  454,  45  Pao.  348; 

ment.     Irwin  v.  Exton,  125  CaL  622,  Koopman  v.  Blodgett,  70  Mich.  610. 

58  Pac.  257;  Field  v.  Village  of  West-  «>  In  Bettman  v.  Harness,  43  W.  Va. 

ern    Springs,  181    111.   186,  54  N.   E.  438,  36  L.  R  A.  566,  568,  26  S.  E.  271, 

929;  Hawes  v.  Withrow,  154  Mo.  397,  where  an  injunction  was  obtained  to 

55  S.  W.  460;  State  v.  May,  106  Mo.  enjoin  operations  under  a  lease  for 

488,  17  S.  W.   660;  Jersey  City,  etc.  boring  wells  for  oil,  the  question  is 

Co.  V.  Blackwell,  58  N.  J.  Ch.  122,  thoroughly    discussed    and    several 

44  AtL   153:   Sarber  v.   Rankin,  154  cases  cited.     The  court  say:   "Will 

Ind.  236;   Birmingham  Ry.  v.  Trac-  equity  entertain  this  suit?    Counsel 

tion  Co.,  121  Ala.  475.  forappellantsably  insist  that theacts 

1  East    Saginaw   Ry.   Co.  v.  Wild-  enjoined  are  but  trespass  to  realty, 

man,  58  Mich.  286.  reparable  in  damages  in  a  court  of 

2E(iward  V.  Allouez  MiningCo.,  38  law;    that  no  injunction  lies;    and 

Mich.  46.  that,  under  cover  of  injunction,  it  ia 

'Lonsdale  Co.  v.   Woonsocket,  21  an  effort  to  try  title  to  land  in  equity, 

R,  I.  498,  44  Atl.  929,  when  the  law  court  is  open  for  ad- 

♦Kellogg  V.  King,  114  Cal.  378,  46  equate  remedy  by  ejectment,  both 


570 


INJUNCTIONS. 


[§  399. 


While  the  general  rule  is  that  an  injunction  will  not  he 
granted  to  restrain  a  mere  trespass  simply  because  it  is  such, 
it  is  very  different  in  cases  where  it  appears  that  the  property 
trespassed  upon  has  some  peculiar  value  which  will  not  admit 


to  recover  possession  and  damages. 
Clearly,  the  general  rule  is  that 
equity  will  not  restrain  a  mere  tres- 
pass to  land,  and.  under  the  guiseof  so 
doing,  try  title  to  land  by  entertain- 
ing what  may  be  called  an  'eject- 
ment bill;'  but  that  rule  has  been 
found  in  later  years  not  to  answer 
fully  the  needs  of  men  in  their 
changing  multifarious  wants  in  the 
calls  of  life,  and  we  find  exceptions 
fastened  upon  the  rule,  fixed  as  the 
rule  itself.  The  last  case  decided  by 
the  great  Chancellor  Kent,  driven 
from  the  bench  in  the  meridian  of 
his  greatness  by  the  constitution  of 
New  York  because  he  had  attained 
the  age  of  sixty  years,  tells  us  of 
this  change  of  the  old  rigor  of  the 
rule.  Jerome  v.  Ross,  7  Johns  Ch. 
315, 11  Am.  Dec.  484  The  rule  there 
stated  is  that  'an  injunction  is  not 
granted  to  restrain  a  mere  trespass, 
where  the  injury  is  not  irreparable 
and  destructive  to  the  plaintiff's  es- 
tate, but  is  susceptible  of  [lerfect  pe- 
cuniary compensation,  and  for  which 
the  party  may  obtain  adequate  satis- 
faction in  the  ordinary  course  of  law. 
it  must  be  a  strong  and  peculiar  case 
of  trespass,  going  to  the  destruction 
of  the  inheritance,  or  where  the  mis- 
chief is  remediless,  to  entitle  the 
party  to  the  interference  of  this 
court  by  injunction.'  Judge  Story, 
after  a  review  of  the  cases,  says  in  2 
Eq.  Jur.,  sec,  928:  '  If  the  trespass  be 
fugitive  and  temporary,  and  ade- 
quate compensation  can  be  obtained 
in  an  action  at  law,  there  is  no 
ground  to  justify  the  interposition 
of  courts  of  equity.  Formerly,  in- 
deed, courts  of  equity  were  ex- 
tremely reluctant  to  interfere  at  all, 
even  in  regard  to  cases  of  repeated 


trespasses.  But  now  there  is  not 
the  slightest  hesitation  if  the  acts 
done,  or  thr  atened  to  be  done,  to 
the  proi)erty  would  be  ruinous  or 
irreparable,  or  would  impair  tlie  just 
enjoyment  of  the  property  in  futura 
If,  indeed,  courts  of  equity  did  not 
interfere  in  cases  of  this  sort  there 
would'  .  .  .  *  be  a  great  failure  of 
justice  in  the  country.'  In  trespass 
to  mines  tiiere  is  greater  liberality 
in  allowing  injunctions  than  in  or- 
dinary trespass  to  land,  since  the  in- 
jury goes  to  the  destruction  of  the 
minerals, —  the  chief  value.  1  Hijih, 
Inj.,  sec.  730.  These  principles  have 
been  followed  in  America  in  cases 
too  numerous  to  cite  here.  For  some 
of  them  see  note  to  Jerome  v.  Ross, 
11  Am.  Dec  498,  500;  Indian  River 
S.  B.  Co,  v.  East  Coast  Transp.  Co.. 
28  Fla.  387;  Carney  v.  Had  ley.  32 
Fla.  344,  22  L.  R.  A.  233:  note  to 
Smith  v.  Gardner  (Oreg.),  53  Am. 
Rep.  346.  2  High,  Inj.,  sec.  697,  em- 
phasizes this  exception  of  irremedi- 
able injury.  Decisions  binding  us 
as  authority  do  not  oppose,  but 
recognize  this  exception.  Anderson 
V.  Harvey.  10  Gratt.  386.  ci98,  po'nt- 
edly  recognizes  it.  There  an  injunc- 
tion was  sustained  against  one  who, 
under  color  of  adverse  title,  was 
taking  out  iron  ore.  In  the  cases  of 
this  state  cited  by  counsel  against 
jurisdiction  in  equity  for  this  case 
(McMillan  v.  Ferrell,  7  W.  Va.  228; 
Cox  V.  Douglass,  20  W.  Va.  175; 
Schoonover  v.  Bright,  24  W.  Va,  698; 
Cresap  v.  Kemble.  26  W.  Va.  603; 
Watson  V.  Ferrell,  34  W.  Va.  406), 
this  exception  of  irreparable  dam- 
age is  definitely  admitted.  They 
were  cases  of  mere  naked  trespasses, 
and  the  omission  of  this  averment 


§  399.] 


INJDNCTI0N8. 


571 


of  due  recompense,  or  where,  by  repeated  or  continuous  tres- 
passes, the  property  in  question  will  be  destroyed;  for  in  such 
cases  it  cannot  be  said  that  there  is  a  complete  or  adequate 
remedy  at  law,  and  equity  will  grant  relief  by  prohibiting  the 
trespass.' 

There  seems  to  be  some  disagreement  between  the  English 
and  American  courts  as  to  whether  the  court  of  equity  will  in- 
terfere by  injunction  to  restrain  the  publication  of  a  libel. 
While  the  English  courts  have  held  that  such  a  publication 
mav  be  enjoined,  the  weight  of  authority  in  this  country  seems 


was  mentioned  as  a  want  of  the 
bills.  Christian  v.  Vance.  41  W.  Va. 
754,  and  Moore  v.  McNutt,  ib.  695.  do 
not  bear  on  this  matter,  but  on  the 
principles  of  jurisdiction  in  equ  ty 
to  remove  cloud  on  land  title.  The 
jurisdiction  for  this  case  is  not 
claimed  to  rest  on  the  right  to  re- 
move cloud  on  title,  but  on  irrepa- 
rable njury,  and  that,  jurisdiction 
bein;<  warranted  on  that  ground,  the 
court  will  go  on  to  adjudicate  on  the 


substance  of  the  estate  and  tend  to  its 
ultimate  destruction,  equity  is  said 
to  be  prompt  to  restrain  them." 

1  McGregor  v.  Silver  King  Mining 
Co.,  14  Utah.  47,  45  Pac.  1091.  Where 
injunctions  lie  to  restrain  insolvent 
persons  from  repeatedly  trespassing 
on  the  lands  of  another,  see  Hanley 
V.  Watterson,89  W.  Va.  214;  Martin  v. 
Davis,  96  Iowa,  718;  Carnej'  v.  Had- 
ley.  32  Fia,  ;^44,  22  L.  R.  A.  338;  In- 
dian River,  etc.  Co.  v.  Transp.  Co., 


rights  of  parties,  as  it  has  jurisdic-  28  Fla.  387;  Silva  v.  Rankin,  80  Ga. 
tion  for  one  purpose.  It  makes  no 
difference,  if  the  elements  of  irrep- 
arable injury  be  present,  whether 
the  party  doing  it  be  solvent  or  in- 
solvent. 1  Beach,  Inj.,  sec.  35.  Such 
being  the  rule,  the  question  — often 
of  difficulty  —  is  one  of  its  practical 
application.  What  is  irreparable  in- 
jury? It  is  impossible  to  define  it 
inflexibly.  Rights  of  property  and 
its  uses  change  so;  so  many  new 
rights  of  property  with  new  uses 
ari.se  as  time  goes  on.  Here  is  the 
right  to  oil  and  gas  a  few  years  ago 
unknown;  the  right  sometimes  in 
separate  ownership.  The  word  'ir- 
reparable' means  that  which  cannot 


79;  Lee  v.  Watson,  15  Mont.  2J8; 
Sullivan  v.  Rabb,  86  Ala.  VS'd;  Ham- 
mond v.  Winchester,  82  Ala.  470; 
Ash  more  Highway,  etc.  v.  Green,  156 
111.  504;  Thornton  v.  Roll,  118  111.  350; 
Musselman  v.  Marquis,  1  Bush  (Ky.), 
463.  89  Am.  Dec.  637;  Wilson  v.  Hill, 
46  N.  J.  Eq.  367:  Hilman  v.  Hurley, 
82  Ky.  626.  See  notes  to  Chicago  & 
N.  W.  Ry.  Co.  V.  Dey,  1  L.  R.  A.  744; 
Haines  v.  Hall,  3  L.  R.  A.  612;  Cor- 
inth V.  Lock,  11  L.  R.  A.  ','07;  Eureka, 
etc.  Co.  V.  California,  etc.  Ry.  Co., 
103  Fed.  897;  Ocmulgee  Lumber  Co. 
V.  Mitchell,  112  Ga.  528;  Roland  Park 
Co.  V.  Hull.  92  Md.  301,  48  Atl.  366. 
It  has  been  held  that  the  cutting  of 


be  repaired,  restored,  or  adequately  growing  trees  is  an  injury  to  the 
compensated  for  in  money,  or  where 
the  compensation  cannot  be  safely 
measured.  The  courts  have  gener- 
ally regarded  as  irreparable  injuries 
the  digging  into  mines  of  coal,  iron, 

lead,  and  precious   metais.  and,  as    Thomas  v.  Oakley,  18  Ves.  184, 
such  iniuries  subtract  from  the  very 


substance  of  the  estate  and  good 
ground  for  equitable  relief  by  in- 
junction. United  States  v.  Guglard, 
79  Fed.  21;  Silva  v.  Garcia,  65  Cal. 
591:    Smith    v.   Rock,    59    Vt.    232; 


572  INJUNCTIONS.  [§  399. 

to  be  the  other  way.  The  cases  are  collected  and  discussed  in 
a  vigorous  opinion  by  Justice  Bradley  of  the  United  States  su- 
preme court  in  Kidd  v.  Ilorry,  where  he  states  that  there  may 
be  some  cases  "  looking  that  way."  He  sums  the  matter  up  by 
saying:  "That  [the]  law  clearly  is  that  the  court  of  chancery 
will  not  interfere,  by  injunction,  to  restrain  the  publication  of 
a  libel."'  This  same  doctrine  seems  to  have  been  adopted  by 
the  state  courts  in  De  Wick  v.  Dodson?  The  court  held  that  an 
injunction  should  not  be  granted  to  restrain  the  defendant 
from  continuing  to  publish  an  alleged  libelous  advertisement 
on  the  ground  that  the  defendant  was  wholly  irresponsible 
and  its  publication  would  inflict  great  injury  upon  the  plaintiff. 
The  writ  is  generally  refused  upon  the  theory  that  there  is  an 
adequate  remedy  at  law,  though  some  of  the  courts  have  held 
that  it  would  be  repugnant  to  the  provisions  of  the  constitu- 
tion which  gives  to  every  citizen  the  right  to  freely  speak, 
write  and  publish  his  sentiments  on  all  subjects,  being  respon- 
sible lor  the  abuse  of  the  right,  and  forbids  the  passing  of  a 
law  which  would  restrain  or  abridge  the  liberty  of  speech  or 
of  the  press.' 

The  holdings  of  the  English  courts  may  be  said  to  be  almost 
entirely  the  result  of  statutes  passed  regulating  the  jurisdic- 
tion and  practice  of  their  several  courts.  As  early  as  1854  there 
was  an  enactment  regulating  the  procedure  in  the  common- 
law  courts  which  gave  to  those  courts  the  right  to  issue  writs 
of  injunction,  both  interlocutory  and  final.  The  jurisdiction 
in  the  chancery  court  was  not  enlarged  until  the  adoption  of  the 
Judicature  Act  in  1873,  by  which  act  all  the  jurisdiction  exer- 
cised by  any  of  the  common-law  courts  was  transferred  to  what 
was  called  the  new  court  — "  The  High  Court  of  Justice."  All 
acts  of  parliament  applying  to  any  of  the  old  courts  were  made 
to  apply  to  the  high  court  of  justice,  and  gave  to  the  chancery 
division  of  that  court  jurisdiction  to  grant  injunctions  when- 
ever it  may  seem  just.  One  of  the  provisions  in  said  act  is  as 
follows:  '-'- K  mandamus  or  an  injunction  may  be  granted,  or  a 
receiver  appointed  by  an  interlocutory  order  of  the  court  in 

1  Kidd  V.  Horry.  28  Fed.  773,  77a        mestic,  etc.  Co.,  49  Ga.  73,  15  Am. 

2  46  N.  Y.  S.  390.  Rep.  674;  Brandreth  v.  Lance,  8  Paige 
» Guardian  Soc.  v.  Roosevelt,  7  Daly    iN.  Y.j,  23,  34  Am.  Dec.  368. 

(N.  Y./,  191;  Singer,  etc  Co.  v.  Do- 


o  399-1  INJUNCTIONS.  57* 

all  cases  in  which  it  shall  appear  to  the  court  to  be  just  or 

convenient."' 

While  the  holdin-s  of  the  English  courts  seera  to  be  uniform 
upon  this  subject  they  do  not  fail  to  emphasize  that  in  their 
opinion  the  use  of  the  injun'tion  in  such  cases  should  be  very 
carefully  exercised.  As  was  said:  "  It  is  a  jurisdiction  which 
must  be  very  carefully  exercised.  No  doubt  there  are  cases 
in  which  it  would  be  quite  proper  to  exercise  it,  as,  for  instance, 
the  case  of  an  atrocious  libel  wholly  unjustified  and  intlicting 
the  most  serious  injury  on  the  plaintiff.  But,  on  the  other 
hand  where  there  is  a  case  to  try,  and  no  immediate  injury  to 
be  expected  from  the  further  publication  of  the  libel,  it  would 
be  very  dangerous  to  restrain  it  by  interlocutory  injunction. 

Lord  Coleridge,  in  commenting  upon  this  particular  phase 
of  the  question,  took  occasion  to  say :  "  It  is  obvious  that  the 
subject-matter  of  an  action  for  defamation  is  so  special  as  to 
require  exceptional  caution  in  exercising  the  jurisdiction  to 
interfere  by  injunction  before  the  trial  of  an  action  to  prevent 
an  anticipated  wrong.     The  right  of  free  speech  is  one  which 

iBeddow  V.  Beddow,  9  Ch.  Div.  U  settled  by  authority   Theauthoritie^ 

T?  ,i«-s   HQ  qa.  i"deed,  are  few  and  recent,  for  very 

2  Ouartz  etc.  Ca  v.  Beall.  20  Ch.  obvious  reasons;   but  they  are  uni- 

D  v^r  iL  a881-82)..0..  508;  Her-  form,  and  they  are  -^ear.    Prxor  to 

mann  Loos  v.  Bean,  26  Ch.   Div.  L.  the   Common   Law   Procedure  Act 

R  (1884)  m     In  Bonnard  v.  Perry-  1854.  neither  courts  of  law  nor  courts 

man  2  Ch  Div.  L.  R.  (1891),  269,  283.  of  equity  could  is.ue  injunctions  m 

Lori  Coleridge.  C.  J.,  in  delivering  such  a  case  as  this;   -t  -urts  of 

the  iudgment  of  the  court,  among  equity,  because  cases  of  libel  could 

otheJ  thTngs  said:    "Two  questions  not  come  before  them;  not  courts  of 

Sjis     r/allynecessarytoV^^^^  law.  because  prior  to  1854  they  couhi 

m  is  there  jurisdiction   in  the  su-  not  issue  injunctions  at  all.      But 

p^eme  court  Jo  issue  an  injunction  the  seventy-ninth  and  eight^second 

torestrain  the  publication  of  an  al-  sections  of  the  Common   Law  Pro- 

eged     il>el.  either  at  all.  or  before  cedure  Act,  1854.  undoubtedly  con- 

the  libel  has  been  adjudged  to  be  ferred  on  the  courts  of  common  law 

such*     And  (2)is  this  a  case  in  which,  the  power,  if  a  fit  case  should  arise 

as  a  matter  o    discretion,  the  juris-  to  grant  injunctions  at  any  stage  o 

dlcUon  should  be  exercised,  if  it  ex-  a  cause  in  all   personal  actions  of 

fstsi    The  decision  of  the  first  ques-  contract  or  tort,  with  no  limitation 

iion  is.  it  is  manifest,  independent  as  to  defamation.     This  power  was 

of  th    circumstances  of  any  particu-  bythe  Judicature  Act  1873.  conferred 

Lrcase;  the  decision  of  the  second  upon  the  chancery  division  of  the 
e^itirelv  depends  upon  them.     As  to     high    court,    representing    the    old 

the  first  we  are  unable  to  entertain  courts  of  equity. 
any  doubt;  the  point  is  clear,  and  is 


574  INJUNCTIONS.  [§  399. 

it  is  for  the  public  interest  that  individuals  should  possess,  and, 
indeed,  that  they  should  exercise  without  impediment,  so  long 
as  no  wrongful  act  is  done;  and,  unless  an  alleged  libel  is  un- 
true, there  is  no  wrong  committed;  but,  on  the  contrary,  often 
a  very  wholesome  act  is  performed  in  the  publication  and 
repetition  of  an  alleged  libel.  Until  it  is  clear  that  an  alleged 
libel  is  untrue,  it  is  not  clear  that  any  right  at  all  has  been  in- 
fringed; and  the  importance  of  leaving  free  speech  unfettered 
is  a  strong  reason  in  cases  of  libel  for  dealing  most  cautiously 
and  warily  with  the  granting  of  interim  injunctions.'" 

While  there  seem  to  be  strong  reasons  supporting  the  Eng- 
lish doctrine,  the  American  courts  have  uniformly  refused  to 
grant  the  writ  to  restrain  the  publication  of  libels,  leaving  the 
victim  of  such  publications  to  his  remedy  at  law.  Whetlier 
this  is  entirely  wise  is  difficult  to  say.  It  would  seem  that 
where  the  libel  is  without  question  false,  and  of  such  a  char- 
acter that  great  injury  to  reputation  or  business  would  be  the 
result  of  its  publication,  the  court  of  equity,  because  of  its 
strong  desire  to  protect  and  furnish  a  remedy  where  the  legal 
remedy  is  not  sufficient  and  complete,  would  take  jurisdiction 
and  enjoin  such  a  publication;  for  how  can  it  be  said  that  the 
publication  of  such  a  libel  going  broadcast  over  the  country, 
which  cannot  be  recalled  or  its  injury  counteracted,  can  be 
adequately,  or  at  all,  remedied  by  damages  recovered  in  an 
action  at  law? 

It  is  a  general  rule  that  equity  will  not  enjoin  the  threat- 
ened breach  of  a  contract  for  the  reason  that  there  is  a  legal 
remedy  for  the  damages  it  might  occasion ;  and  where  a  bill 
was  filed  for  the  specific  performance  of  a  contract,  praying 
that  a  writ  of  injunction  might  issue  enjoining  and  restraining 
the  defendant  from  threatened  breaches  of  a  contract  which  had 
several  years  to  run,  the  court  refused  to  grant  such  an  injunc- 
tion, holding  that  "an  injunction  in  aid  of  specific  perform- 
ance is  merely  ancillary.  The  primary  inquiry  is,  necessarily, 
whether  the  contract  on  which  the  bill  is  founded  is  of  the  nat- 
ure and  character  of  which  the  court  is  accustomed  to  decree 
specific  performance.  If  it  is  not  of  this  nature  and  charac- 
ter, or  if  for  the  injury  of  which  complaint  is  made  the  law 

I  Bonnard  v.  Ferryman,  2  Ch.  Div.  L.  R.  (1891),  269,  284 


§  3;»9.J  INJUNCTIONS.  575 

provides  an  adequate  remedy,  the  bill  fails,  and  the  incidental 
or  cons.quent  remedy  by  injunction  must  fail."  The  court 
further  ol)serves:  "The  general  doctrine  is  that  a  court  of 
equity  will  decree  specific  performance  only  when  it  can  dis- 
pose of  the  matter  in  controversy  by  a  decree  capable  of  pres- 
ent performance.  It  will  not  decree  a  party  to  perform  a  con- 
tinuous duty  extending  over  a  series  of  years,  but  will  leave 
the  aggrieved  party  to  his  remedies  at  law.  .  .  .  The  de- 
fendant could  not  have  a  decree  against  the  complainant  for  a 
specific  performance  of  the  contract.  The  complainant  could 
not  be  compelled  to  keep  and  maintain  its  machinery  and 
skilled  employees  to  operate  it;  to  pursue  its  business  at  a  pe- 
cuniary loss,  it  may  be.  There  can  be  no  assurance  that  the 
complainant  will  remain  of  sufficient  pecuniary  ability  to  con- 
tinue its  business,  to  keep  and  perform  its  part  of  the  contract. 
These,  and  like  considerations,  have  induced  the  courts,  in 
cases  like  the  present,  to  abstain  from  all  interference  by  in- 
junction or  a  decree  for  specific  performance."* 

While  the  rule  seems  to  be  general  that  for  the  threatened 
breach  of  an  ordinary  contract  for  the  violation  of  which  a 
party  has  a  complete  and  adequate  remedy  at  law,  the  court 
of  equity  will  not  interfere  or  grant  its  injunction,  the  rule  can- 
not be  said  to  apply  to  cases  of  contracts  which  affect  the 
rights  of  the  public  at  large;  as,  for  example,  contracts  rela- 
tive to  the  management  and  control  of  railroads  and  other 
agencies  of  transportation  which  have  special  privileges  con- 
ferred by  statute  and  are  held  to  promote  a  general  welfare. 
For  to  such  contracts  the  parties  are  not  the  only  persons  in- 
terested—  the  public  at  large  have  privileges  and  rights  which 
must  be  protected;  as  in  cases  of  railroads,  the  railroad  com- 
pany has  received  at  the  hands  of  the  public  a  franchise,  and 
there  is  an  implied  contract  that  the  company  that  obtains  it 
and  builds  the  railroad  will  operate  it  to  a  certain  extent  for 
the  benefit  of  the  public.  And  so  in  the  operation  and  control 
of  all  public  franchises  or  public  agencies  the  public  are  inter- 
ested. It  has  been  said  that  "railroads  are  common  carriers 
and  owe  duties  to  the  public.     The  rights  of  the  public  in  re- 

1  Electric  Lighting,  etc.  Co.  v.  Mo-  etc.  Co.,  17  App.  D.  C  356.  But  see 
bile,  etc.  Ry.  Co.,  109  Ala.  190,  193;  Simpson  v.  Pittsburgh,  eta  Ca,  28 
Dewey  Hotel  Co.  v.  United  States,     Ind.  App.  343,  63  N.  E.  753. 


576  INJUNCTIONS.  [§  399. 

spect  to  these  sfreat  highways  of  communication  should  be  fos^ 
tered  by  the  courts;  and  it  is  one  of  the  useful  functions  of  a 
court  of  equity  that  its  methods  of  procedure  are  capable  of 
bein.,^  made  such  as  to  accommodate  themselves  to  the  develop- 
ment of  the  interests  of  the  public,  in  the  progress  of  trade  and 
traffic,  by  new  methods  of  intercourse  and  transportation."* 
This  exception  rests  upon  the  express  ground  that  this  burden 
to  regard  and  care  for  the  rights  of  the  public  at  large  should 
be  assumed  by  t'le  court.^ 

(4j  The  court  of  equity  will  not  grant  an  injunction  if  it  is 
likely  to  injlict  greater  injury  than  the  grievance  coinplained  of 
or  where  the  injury  complained  of  is  slight  or  doubtful.  If  the 
relief  sought  is  liable  to  inflict  greater  injury  than  the  griev- 
ance complained  of,  the  court  of  equity  will  not  interfere, 
nor  will  the  court  of  equity  deal  with  alleged  injuries  that 
are  slight  or  doubtful:  or  where  the  latter  depends  upon  a  dis- 
puted question  of  law;  the  injunction  should  not  be  granted 
unless  the  plaintiff's  rights  seem  clear,  and  if  granted  will 
not  operate  with  greater  hardship  upon  the  defendant  than 
its  disallowance  would  upon  the  plaintiff,  for  if  it  is  prob- 
able that  more  wrong  will  be  done  than  prevented,  the  court 
will  refuse  the  writ.'  Injunctions  are  to  prevent  threat- 
ened and  irreparable  injury;  to  stay  consequences  that  are 
impending  or  that  are  being  carried  out,  and  not  merely  to 
adjudge  and  settle  rights  between  the  parties.  "Courts  of 
equity  will  not  lend  their  aid  by  injunction  for  the  enforce- 
ment of  a  right  or  the  prevention  of  a  wrong  in  the  abstract, 
not  connected  with  any  injury  or  damage  to  the  person  seek- 
ing relief,  nor  when  such  injury  or  damage  can  be  fully  and 
amply  recovered  in  an  action  at  law.  Nor  are  courts  of  equity 
established  to  decide  or  declare  abstract  questions  of  right  for 
the  future  guidance  of  suitors."* 

1  Joy  V.  St  Louis,  138  U.  &  1.  50;  Co.  v.  New  York  Dredging  Co.,  77 
Southern  Ry.  Co.  v.  Franklin,  etc.  Fed.  980;  Fesler  v.  Brayton,  145  Ind. 
Ry.  Co..  96  Va.  693,  44  L.  R.  A.  297.  71.  32  L.  R.  A.  578,  44  N.  E.  37:  Jer- 

2  Prosptct  Park,  etc  Co.  v.  Coney  sey  City  Gns  Co.  v.  Consumers'  Gas 
Island,  etc.  Co..  144  N.  Y.  152,  26  L.  Co..  40  N.  J.  Eq.  427;  Booiaem  v. 
R  A.  610.  Railroad  Co.,  40  N.  J.  Eq.  557. 

'Knoxville  v.  Africa,  23  CL  C.  A.  ♦See  Saginaw,  etc.  Ry.  Co.  v.  Wild- 
252,  77  Fed.  501;  Bowers  Dredging    man,  58  Mich.  286,  287. 


§  399.]  INJUNCTIONS.  577 

(5)  One  court  will  not  enjoin  another.  Where  a  writ  of  in- 
junction is  issued  to  restrain  the  prosecution  of  an  action  pend- 
ing in  another  court,  it  is  not  directed  to  the  court,  but  to  the 
person  who  prosecutes  the  cause  in  the  court.  The  court  by 
its  writ  of  injunction  will  not  undertake  to  enjoin  or  restrain 
another  court  in  its  proceedings,  but  will  govern  and  restrain 
the  party  who  is  proceeding  in  the  court.  As  has  been  said, 
courts  of  equity  restrain  proceedings  at  law  when  necessary  to 
the  attainment  of  justice,  not  by  assuming  jurisdiction  over  the 
court  in  which  the  proceedings  are  pending,  but  by  controlling 
the  parties  to  such  proceedings  by  injunction.^ 

(6)  Equity  will  not  restrairi  a  suit  or  proceeding  previously  he- 
yu7i  in  a  court  of  a  sister  state^  or  in  a  federal  court,  or  a  suit 
already  pending  in  another  court  of  co-ordinate  jurisdiction. 
It  would  be  against  the  comity  that  exists  between  states  as 
well  as  against  public  policy  for  a  court  of  equity  to  undertake 
to  interfere  with  suits  or  proceedings  that  are  pending  in  courts 
of  sister  states  or  in  a  federal  court.  A  suit  that  is  already 
pending  in  a  court  of  co-ordinate  jurisdiction  should  be  settled 
in  that  court,  and  a  court  of  equity  will  under  no  circumstances 
interfere  in  such  case.  In  Mead  v.  Merritt^  the  chancellor  said: 
"I  am  not  aware  that  any  court  of  equity  in  the  Union  has  de- 
liberately decided  that  it  will  exercise  the  power,  by  process 
of  injunction,  of  restraining  proceedings  which  have  been 
previously  commenced  in  the  courts  of  another  state.  Not 
only  comity  but  public  policy  forbids  the  exercise  of  such  a 
power.  If  this  court  should  sustain  an  injunction  bill  to  restrain 
proceedings  previously  commenced  in  a  sister  state,  the  court 
of  that  state  might  retaliate  upon  the  complainant  who  was 
defendant  in  the  suit  there;  and,  by  process  of  attachment, 
might  compel  hira  to  relinquish  the  suit  subsequently  com- 
menced here.  By  this  course  of  proceeding  the  courts  of  dif- 
ferent states  would  indirectly  be  brought  into  collision  with 
each  other  in  regard  to  jurisdiction;  and  the  rights  of  suitors 
might  be  lost  sight  of  in  a  useless  struggle  for  what  might  be 
considered  the  legitimate  powers  and  rights  of  courts." 

1  Burpee  v.  Smith,  Walk.  Ch.  (Midi.)  v.  Farmers'  &  Mechanics'  Bank,  Harr. 
827,  329.  Ch.  (Mich.)  197. 

2  2  Paige  Ch.  (N.  Y.)  402, 404;  Carroll 

37 


578  INJUNCTIONS.  [§  'i^O. 

§  400.  Cases  in  wliicli  courts  of  equity  will  allow  injunc- 
tions.—The  cases  in  which  the  court  of  equity  will  allow  the 
injunction  to  issue  are  numerous  and  varied,  and  to  name  and 
discuss  them  all  would  be  an  interminable  and  profitless  task; 
the  most  that  can  be  done  is  to  classify  them  so  far  as  possible 
and  notice  the  principles  that  govern  the  courts  in  granting 
the  remedy.  There  is  one  all-important  governing  principle 
that  must  always  appear  in  order  to  move  the  court  in  its  ex- 
ercise of  sound  discretion  to  grant  the  writ  of  injunction;  the 
threatened  or  impending  injury  must  be  irreparable  and  of 
such  a  nature  that  the  law  courts  will  afford  no  adequate  rera- 
eJ  V.  The  several  cases  in  which  the  equity  court  will  interpose 
by  exercising  either  its  preventive  or  mandatory  power  by  in- 
junction may,  with  a  few  exceptions,  be  arranged  and  grouped 
under  the  following  heads  or  classes: 

(1)  Cases  in  which  a  court  of  equity  will  restrain  proceedings 
in  another  court. 

(2)  Where  the  court  will  declare  and  enforce  a  trust  or  a 
purely  equitable  right. 

(3)  To  restrain  a  multiplicity  of  suits. 

(4)  To  enjoin  the  violation  of  a  negative  contract. 

(5)  To  restrain  the  breach  of  a  covenant  or  contract  affecting 

lands. 

(6)  To  restrain  the  unlawful  or  inequitable  conveyance  or 
incumbrance  of  property. 

(7)  To  restrain  a  corporation  from  violating  its  charter. 

(8)  To  prevent  waste. 

(9)  To  restrain  the  committing  of  a  nuisance  or  its  continu- 
ance. 

(10)  To  enjoin  the  infringement  of  patents,  copyrights  or 

trade-marks. 

(11)  To  prevent  tortious  or  criminal  acts,  conspiracies  and 
combmations. 

(1)  Cases  in  which  a  court  of  equity  will  restrain  proceedings 
in  another  court.  It  is  a  rule  of  law  well  settled  that  one  court 
will  not  enjoin  another  court.  As  we  have  seen,  it  will  only 
interfere  by  enjoining  the  parties  from  proceeding  with  the 
cause  they  are  prosecuting  in  the  other  court.*    The  prosecu- 

i^nfe,§399,  subd.  5. 


§  400.]  INJUNCTIONS.  679 

tion  of  the  cause  that  the  equity  court  will  enjoin  may  be  one 
pending  in  a  court  of  law,  equity  or  admiralty.  It  may  be  in 
the  state  or  federal  court,  but  must  be  of  such  a  nature  and 
under  such  circumstances  as  will  give  to  the  equity  court  the 
power  and  jurisdiction  to  enforce  its  order  against  the  persons 
who  are  prosecuting  the  cause.  A  court  of  equity  will  not  en- 
join criminal  proceedings,  nor  will  it  interfere  with  the  ap- 
pointment or  removal  of  public  officers,  whether  the  power  of 
removal  is  vested  in  the  executive  or  administrative  boards  of 
officers  or  in  a  judicial  tribunal.  The  jurisdiction  to  deter- 
mine the  title  to  a  public  oflBce  belongs  entirely  to  courts  of 
law. 

'•  The  office  and  jurisdiction  of  a  court  of  equity,  unless  en- 
larged by  express  statute,  are  limited  to  the  protection  of 
rights  of  property.  It  has  no  jurisdiction  over  the  prosecution, 
the  punishment  or  the  pardon  of  crimes  or  misdemeanors,  or 
over  the  appointment  and  removal  of  public  officers.  To  as- 
sume such  a  jurisdiction,  or  to  sustain  a  bill  in  equity  to  re- 
strain or  relieve  against  proceedings  for  the  punishment  of 
offenses,  or  for  the  removal  of  public  officers,  is  to  invade  the 
domain  of  the  courts  of  common  law,  or  of  the  executive  and 
administrative  department  of  the  government.  Any  jurisdic- 
tion over  criminal  matters  that  the  English  court  of  chancery 
ever  had  became  obsolete  long  ago,  except  as  incidental  to  its 
peculiar  jurisdiction  for  the  protection  of  infants,  or  under  its 
authority  to  issue  writs  of  habeas  corjpua  for  the  discharge  of 
persons  unlawfully  imprisoned."  ^ 

I  In  Re  Sawyer,  124  U.  S.  200,  210,  court  would  break  it,  and  protect 
Mr.  Justice  Gray,  in  delivering  the  any  that  would  proceed  in  contempt 
opinion,  took  occasion  to  say  that  of  it."  The  court  further  say:  "In 
"from  long  before  the  Declaration  the  courts  of  the  several  states,  the 
of  Independence  it  has  been  settled  power  of  a  court  of  equity  to  re- 
in England  that  a  bill  to  stay  crim-  strain  by  injunction  the  removal 
inal  proceedings  is  not  within  the  of  a  municipal  officer  has  been  de- 
jurisdiction  of  the  court  of  chancery,  nied  in  many  well-considered  cases, 
whether  those  proceedings  are  by  Upon  a  bill  in  equity  in  the  court 
indictment  or  by  summary  process."  of  chancery  of  the  state  of  New 
Quoting  from  Lord  Chief  Justice  York  by  a  lawfully  appointed  in- 
Holt  the  court  say:  "Sure  chancery  spector  of  flour,  charging  that  he 
would  not  grant  an  injunction  in  a  has  been  ousted  of  his  office  by  one 
criminal  matter  under  examination  unlawfully  appointed  in  his  stead 
in  this  court;  and  if  they  did,  this  by  the  governor,  and  that  the  new 


580 


INJUNCTIONS. 


[§  400. 


The  creneral  rule  governing  the  jurisdiction  of  the  courts  in 
respect  to  proceedings  in  a  court  of  concurrent  jurisdiction 
over  the  same  subject-matter  is,  that  whichever  court  has  tirst 
obtained  jurisdiction  of  the  cause  has  a  right  to  proceed  with 
it,  and  its  proceedings  will  not  be  prohibited  or  restrained  by 
another  court.  This  rule  obtains  as  well  in  the  federal  courts 
as  in  the  state  courts.  And  the  federal  statute  which  provides 
that  "the  writ  of  injunction  shall  not  be  granted  by  any  court 
of  the  United  States  to  stay  proceedings  in  any  court  of  a 
state  exce|)t  in  cases  where  such  injunction  may  be  nuthorized 
by  any  law  relating  to  proceedings  in  bankruptcy'"  is  but  a 
legislative  affirmation  of  the  well  settled  rule  in  equity. 

In  Uemdey  v.  Myers^  it  was  said:     "This  section,  save  the 


appointee  was  insolvent,  and  pray- 
ing for  an  injunction,  a  receiver  and 
an  account  of  fees  until  the  plaint- 
iff's title  to  the  office  could  be  tried 
at  law.  Vice-Chancellor  McCoun 
said:  'This  court  may  not  iiave  ju- 
risdiction to  determine  that  ques- 
tion, so  as  to  render  a  judgment  or 
decree  of  ouster  of  the  office;'  but 
he  overruled  a  demurrer  upon  the 
ground  tliatthe  bill  showed  a  prima 
facie  tit  e  in  the  plaintiff.  Tappan 
V.  Gray,  8  Eiw.  Ch.  450.  On  ai)peal 
Chancellor  Walworth  reversed  tlie 
decree  '  upon  the  ground  that  at  the 
time  of  the  filing  of  this  bill  the 
court  of  chancery  had  no  jurisdic- 
tion or  power  to  afford  him  any  re- 
lief.' 9  Paige,  507.  509,  512.  And 
the  chancellor's  decree  was  unani- 
mously affirmed  by  the  court  of  ei*- 
rors  upon  Chief  Justice  Nelson's 
statement  that  he  concurred  with 
the  chancellor  respecting  the  juris- 
diction of  c-ourts  of  equity  in  cases 
of  this  kind.  7  Hill,  259.  The  su- 
preme court  of  Pennsylvania  has 
decided  that  an  injunction  cannot 
be  granted  to  restrain  a  municipal 
officer  from  exercising  an  office 
which  he  has  vacated  by  accepting 
another  office,  or  from  entering  upon 
an  office  under  an  appointment  by 


a  town  council,  alleged  to  be  illegal; 
but  that  the  only  remedy  in  either 
case  is  at  law  by  quo  warranto. 
Hagner  v.  Heyberger,  7  Watts  & 
Serg.  104;  Up  legraff  v.  Crans.  47  Pa. 
St.  103.  The  supreme  court  of  Iowa, 
in  a  careful  opinion  delivered  by 
Judge  Dillon,  has  adjudged  that  the 
right  to  a  municipal  office  cannot  be 
determined  in  equity  upon  an  orig- 
inal bill  for  an  injunction.  Cochran 
V.  McCleary,  22  Iowa,  75.  In  Dele- 
hanty  v.  Warner,  75  III.  185,  it  was 
decided  that  a  court  of  chanceiy 
had  no  jurisdiction  to  entertain  a 
bill  for  an  injunction  to  restrain  the 
mayor  and  aldermen  of  a  city  from 
unlawfully  removing  the  pluintiff 
from  the  office  of  superintendent  of 
streets  and  appointing  a  successor; 
but  that  the  remedy  was  at  law  by 
quo  wai'ranto  or  mandamus.  In 
Sheridan  v.  Colvin,  78  III.  237,  it  was 
held  that  a  court  of  chancery  had  no 
jurisdiction  to  restrain  by  injunc- 
tion a  city  council  from  passing  an 
ordinance  unlawfully  abolishing  the 
office  of  commissioner  of  police." 

1  U.  S.  Rev.  Stat.,  sec.  720. 

2  45  Fed.  289.  In  Bell  v.  Ohio  Life, 
etc.  Co.,  1  Biss.  (U.  S.)  2G0.  it  was  held 
that  in  a  case  where  the  United 
States  court  had  taken  jurisdiction 


§  ^00.] 


INJUNCTIONS. 


581 


exception,  is  as  old  as  the  judicial  system  of  the  United  States. 
Its  prohibition  is  absolute  and  unqualified,  except  where  the 
injunction  is  authorized  by  law  in  proceedings  in  bankruptcy. 
This  exception  serves  to  emphasize  the  prohibition  as  to  all 
other  cases." 

The  court  first  obtaining  jurisdiction  has  the  right  to  deter- 
mine every  question  which  may  arise  in  the  cause,  and  that 
determination  will  be  considered  binding  in  every  other  court 
until  it  is  reversed,  and  the  proceedings  of  the  court  cannot  be 
enjoined  or  arrested  or  taken  away  by  any  proceedings  in  any 
other  court.  And  so  it  has  been  held  that "  when  a  state  court 
and  a  court  of  the  United  States  may  take  jurisdiction  of  a 
matter,  the  tribunal  where  jurisdiction  first  attaches  holds  it 
to  the  exclusion  of  the  other  until  its  duty  is  fully  performed, 
and  the  jurisdiction  involved  is  exhausted;  and  this  rule  ap- 
plies alike  in  both  civil  and  criminal  cases."  ^ 

This  rule  also  applies  to  cases  where  the  court  seeks  to  en- 
join proceedings  in  another  state  or  country.     Formerly  it  was 


and  issued  an  injunction,  a  state 
court  had  no  authority  to  take  ac- 
tion or  make  orders  in  res^ard  to  the 
subject-matter  over  which  such 
jurisdiction  has  been  exercised;  nor 
had  its  officers  any  rie;ht  to  the  pos- 
session or  control  of  tlie  subject- 
matter.  Riggs  V.  Johnson  Co.,  6  Wall. 
(U.  S.)  166.  In  Akerley  v.  Vilas,  15 
Wis.  404,  412,  it  was  held  that  the 
state  court  might  restrain  a  party 
from  proceeding  furtherin  an  action 
in  the  United  States  court  upon  the 
ground  that  the  court  of  equity 
which  first  acquires  jurisdiction  of 
the  cause  will  retain  it  for  a  final 
determination  of  the  rights  of  the 
parties.  The  court  in  its  opinion 
say:  "The  general  power  of  courts 
of  equity  whose  jurisdiction  has 
once  attached,  to  restrain  parties 
from  commencing  and  prosecuting 
subsequent  actions  in  other  courts 
for  the  same  object,  is  unquestioned. 
If  any  doubt  should  exist,  it  will  be 
effectually  dispelled  by  an  examina- 
tion of  the  cases  cited  by  the  counsel 


for  the  defendant.  The  defendant 
will  be  restrained  at  the  instance  of 
the  plaintiff,  and  vice  versa.  The 
forum  or  jurisdiction  in  which  tlie 
subsequent  proceedings  are  taken, 
whether  domestic  or  foreign,  is 
immaterial.  The  injunr'tion  goes 
against  the  party  and  not  the  court 
or  officer.  The  doctrine  of  the  Eng- 
lish courts  is  well  settled,  and  we 
are  unable  to  find  any  American  de- 
cision to  the  contrary.  The  sole  in- 
quiry is,  whether  the  ends  of  justice 
demand  that  the  power  should  be 
exercised.  If  they  do,  the  court 
first  acquiring  jurisdiction  will  re- 
tain the  suit  for  a  final  determina- 
tion of  the  rights  of  the  parties,  and 
restrain  them  from  suingor  proceed- 
ing elsewhere." 

iHarkrader  v.  Wad  ley,  173  U.  S. 
148,  164;  Freeman  v.  Howe,  24  How. 
(U.  S.)  450;  Buck  v.  Col  bath,  3  WalL 
(U.  S.)  384;  Taylor  v.  Tainter,  16 
WalL  366;  Ex  parte  Crouch,  113  U.  S. 
17a 


582  INJUNCTIONS.  [§  4:00. 

held  that  the  jurisdiction  of  the  court  in  such  cases  was  limited 
to  the  territory  or  jurisdictional  lines  of  the  particular  court, 
but  there  is  no  longer  any  question  but  that  the  power  of  a 
court  of  equity  is  sufficient  to  restrain  its  own  citizens  from  the 
prosecution  of  suits  in  other  states  and  even  in  foreign  countries. 
Where  an  insurance  company  filed  their  bill  for  relief  against 
two  policies  of  insurance  against  loss  or  damage  by  fire,  which 
tht  y  alleged  had  been  fraudulently  obtained  from  them  upon 
property  in  another  state,  the  bill  praying  that  the  policies 
might  be  delivered  up  and  canceled  and  declared  invalid  and 
the  defendant  perpetually  enjoined  from  bringing  any  suit  at 
law  or  equity  upon  them,  or  making  use  of  them  in  any  way 
for  the  purpose  of  establishing  any  debt  or  damage  against  the 
complainant,  it  was  held  that  the  jurisdiction  thus  obtained 
would  be  retained  for  the  final  disposition  of  the  cause,  and 
that  the  injunction  prayed  for  and  issued  would  be  sufficient 
to  restrain  an}'^  action  in  a  federal  court  which  had  concurrent 
jurisdiction  in  the  foreign  state.  The  court  say:  "This  court 
having  the  power  to  hear  and  determine  the  subject-matter  in 
controversy,  and  having  first  obtained  possession  of  the  con- 
troversy, is  fully  at  liberty  to  retain  it  until  it  shall  have  dis- 
posed of  it.  The  general  rule  is  that,  as  between  courts  of 
concurrent  and  co-ordinate  jurisdiction  (and  the  circuit  court 
of  the  United  States  and  the  state  courts  are  such  in  certain 
controversies  —  such  as  that  involved  in  this  suit,  for  example  — 
between  citizens  of  difiFerent  states),  the  court  that  first  obtains 
possession  of  the  controversy  must  be  allowed  to  dispose  of  it, 
without  interference  from  the  co-ordinate  court."  * 

1  Home  Ins.  Co.  v,  Howell,  24  N.  J.  right  cannot  be  arrested  or  taken 
Eq.  288,  241;  Peck  V.  Jenness,  7  How.  away  by  proceedings  in  another 
(U.  S.)  624,  in  which  the  court  say:  court.  These  rules  have  their  founda- 
"  It  is  a  doctrine  of  law  too  long  es-  tion,  not  merely  in  comity,  but  on 
tabiished  to  require  a  citation  of  necessity.  For  if  one  may  enjoin, 
authorities  that,  where  a  court  lias  tlie  other  may  retort  by  injunction, 
jurisdiction,  it  has  a  right  to  decide  and  thus  the  parties  be  without 
every  question  which  occurs  in  the  remedy;  being  liable  to  a  process  for 
cause,  and  whether  its  decision  be  contempt  in  one,  if  they  dare  to  pro- 
correct  or  otherwise,  its  judgment,  ceed  in  the  other."  Gage  v.  River- 
till  reversed,  is  regarded  as  binding  side  Trust  Co.,  86  Fed.  984;  Mead  v. 
in  every  other  court;  and  that,  where  Merritt,  2  Paige  Ch.  (N.  Y.)  402;  Car- 
the  jurisdiction  of  a  court,  and  the  roll  v.  Farmers',  etc.  Bank,  Harr.  Ch. 
right  of  a  plaintiff  to  prosecute  his  (Mich.)  197;  Chapin  v.  James,  11  R.  I 
suit  in  it,  have  once  attached,  that  86;  Hines  v.  Rawson,  40  Ga.  356. 


§  400.]  INJUNCTIONS.  583 

By  the  Bankruptcy  Act  of  the  United  States  this  rule  was 
limited  b}'  a  provision  of  the  act  providing  "  that  all  levies, 
judgments,  attachments  or  other  liens  obtained  through  legal 
proceedings  against  a  person  who  is  insolvent  at  any  time 
within  four  months  prior  to  the  filing  of  a  petition  in  bank- 
ruptcy against  him  shall  be  deemed  null  and  void  in  case  he  is 
adjudged  a  bankrupt,  and  the  property  affected  by  the  lev}'', 
judgment,  attachment  or  other  lien  shall  be  deemed  wholly 
discharged  and  released  from  the  same,  and  shall  pass  to  the 
trustee  as  a  part  of  the  estate  of  a  bankrupt,  unless  the  court 
shall  on  due  notice  order  that  the  right  under  such  levy,  judg- 
ment, attachment  or  other  lien  shall  be  preserved  for  the  bene- 
fit of  the  estate;  and  thereupon  the  same  may  pass  to  and 
shall  be  preserved  by  the  trustee  for  the  benefit  of  the  estate 
as  aforesaid."  ^ 

(2)  Where  the  court  will  declare  and  enforce  a  trust  or  a 
'purely  equitaUe  right.  The  enforcement  and  protection  of 
trusts  is  particularly  within  the  jurisdiction  of  the  equity  court, 
and  where  the  trust  is  found  to  exist  equity  will  protect  it 
from  infringement  by  its  writ  of  injunction.  The  court  goner- 
ally  protects  the  rights  of  cestui  que  trust  and  will  permit  no 
advantage  to  be  taken  of  him,  or  personal  benefit  to  be  ob- 
tained at  his  expense,  by  the  trustee;  and  it  is  said  that  on  this 
principle  "  a  trustee  is  not  permitted  to  purchase  the  trust  es- 
tate or  to  make  a  contract  with  himself  individually,  or  one  in 
which  he  is  personally  interested,  and  from  which  he  may  de- 
rive a  profit,  to  the  prejudice  of  his  cestui  que  trust.  Such 
transactions  are  discountenanced  by  courts  of  equity,  as  they 
afford  a  great  temptation  for  the  violation  of  fiduciary  duties 
and  often  lead  to  fraud,  by  which  the  rights  of  a  cestui  que 
trust  are  violated."  "^ 

So  courts  of  equity  will  not  allow  a  party  to  whom  a  secret 
process  of  manufacture  has  been  confidentially  disclosed,  ob- 
tained by  express  or  implied  promise  of  secrecy  for  the  mut- 
ual benefit  of  the  parties  in  using  it,  or  which  has  been  sur- 
reptitiously obtained  from   another,  to  disclose  it,  and  will 

1  Bankruptcy  Act  of  1898,  sec.  67,  L.  &  Eq.  587,  590;  Cowles  v.  Whit- 

8ubd.  f.  man.  10  Conn.  121;  Draper  v.  Davis, 

2S100  V.  Law,  3  Blatch.  (U.  S.)  459,  104  U.  S.  347. 
477;  Broughtonv.  Broughton,31  Eng. 


58i  iN.3UNCTn):;s.  [g  4.00. 

enjoin  a  threatened  violation  of  the  duty  to  keep  it  secret.  To 
disclose  a  secret  thus  obtained  would  be  a  breach  of  trust,  and 
an  injunction  will  always  be  granted  to  restrain  such  a  breach. 
In  such  cases  there  is  no  adequate  remedy  at  law.  This  is  con- 
clusive from  the  very  nature  of  the  case,  and  the  peculiar 
character  of  the  injury  which  a  disclosure  of  the  secret  might 
inflict.*  "  There  is  no  doubt  whatever,"  said  Mr.  Justice  Gray 
in  Peabody  et  al.  v.  Norfolk  et  al.^  adopting  the  language  of 
Lord  Cran  worth,  "that  when  a  party  who  has  a  secret  in  trade 
employs  persons  under  a  contract  express  or  implied,  or  under 
duty  express  or  implied,  those  persons  cannot  gain  the  knowl- 
edge of  the  secret  and  then  set  it  up  against  their  employer." 
Literary  productions,  as  lectures,  plays,  and  even  private 
letters,  have  been  held  to  be  subjects  for  the  protection  of  the 
court  of  equity  by  its  writ  of  injunction  when  obtained  under 
express  or  implied  agreement  not  to  publish  or  make  them 
public.^  And  so  an  injunction  will  issue  to  restrain  the  payee 
of  a  negotiable  instrument,  invalid  as  between  the  maker  and 
the  holder,  from  disposing  of  the  same  to  an  innocent  pur- 
chaser, in  whose  hands  it  would  be  good  as  against  the  maker. 
For  in  equity  the  payee  of  such  an  instrument  will  be  declared 
to  hold  the  same  in  trust  for  the  maker.* 

^  Peabody  et  al.  v.  Norfolk  et  al.,  98  that  the  injunction  would  not  issue 

Mass.  453,  459;  O.  &  W.  Thum  Uo.  v.  against  defendant  for  republishing 

Tloczynski,  114  Mich.  149,  38  L.  R  A.  these  lectures   for  the   reason   that 

200;  Evittv.  Price,  1  Sim.  483;  Morison  they  were  not    written;   that   they 

V.  Moat,  6  Eng.  L.  &  Eq.  414;  2  Story,  were  a  part  of  the  official  duty  of 

Eq.  Jur.  953;  Jarvis  v.  Peck,  10  Paige  the  plaintiff,  and  that  the  defendant 

Ch.  (N.  Y.)  118;  Tabor  v.  Hoffman,  was  a  publisher  not  connected  with 

118  N.  Y.  30,  16  Am.  St.  Rep.  740;  the  pupils.    The  lord  chancellor,  in 

Champlin  v.  Stoddard,  30  Hun  (N.  Y.),  his  opinion,  said  that  it  was  difficult 

300;  Fralich  v.  Despar,  165  Pa.  St.  24  to    say    whether  the  plaintiff  had 

2  98  Mass.  452,  459;  2  Story,  Eq.  Jur.,  property  in  lectures  purely  oral,  the 
sec.  952.  point    never  having  been  decided, 

3  2  Story,  Eq.  Jur.,  sees.  949,  950;  the  same  as  in  literary  composition, 
2  Daul.  Ch.  PI.  &  Pr.  (4th  ed.)  1654  but  that  he  was  clearly  of  the  opin- 
The  case  of  Abernethy  v.  Hutchin-  ion  that  the  lectures  could  not  be 
son,  2  Law  J.  Rep.  209,  was  one  published  for  profit;  that  the  stu- 
where  surgical  lectures  were  de-  dents  might  take  them  down  for 
livered  by  the  plamtiff.  The  lee-  their  own  information,  but  they 
tures  were  oral  and  delivered  to  could  not  publish  and  sell  them  to 
pupils  and  students  who  paid  reg-  others  for  profit. 

ular  fees   for  the    privilege  of  at-        <  Metier  v.  Metier,  18  N.  J.  Eq.  270; 
tending  the  same.     It   was  prayed     Hinkle  v.  Margerum,  50  Ind.  240. 


fi  400.1  INJUNCTIONS.  •      585 

<3)  To  ref^train  a  multiplicity  of  suits.  The  writ  of  injunc- 
tion is  often  granted  to  restrain  a  multiplicity  of  suits  in  cases 
where  equity  has  assumed  jurisdiction  and  a  suit  is  pending 
wherein  it  is  sought  to  settle  and  determine  the  whole  contro- 
versy in  the  one  proceeding.  Bills  filed  in  such  cases  are 
sometimes  called  bills  of  peace.  They  ask  the  court  for  its 
writ  of  injunction  to  restrain  the  several  persons  who  are  en- 
deavoring by  their  several  suits  to  settle  the  same  or  similar 
claims,  or  who  are  threatening  to  do  so,  from  proceeding  until 
the  further  order  of  the  court.^  Or  where  separate  actions  by  a 
party  injured  were  commeaced  against  several  insurers  to  have 
their  liabilities  determined,  their  defense  being  the  same,  and 
their  liabilities,  if  any,  proportional,  a  court  of  equity  wnll  take 
jurisdiction  on  the  ground  of  inadequacy  of  remedy  at  law, 
enjoining  the  separate   actions   and   determining   the   entire 

controversy  by  its  decree.'^ 

(4)   To  evjoin  the  violation  of  a  negative  contract.     Although 

the  court  of  equity  will  not  ordinarily  enjoin  the  breach  of  a 
contract  for  the  reason  that  there  is  an  adequate  remedy  at 
law,  it  will  enjoin  the  breach  of  a  negative  promise,  because 
in  such  a  case  the  law  affords  no  ad*  quate  remedy,  and  if 
the  promisee  should  attempt  to  obtain  relief  in  a  court  of 
law,  it  would  only  involve  him  in  a  multiplicity  of  suits.  ^  The 
equity  court,  however,  by  its  writ  of  injunction  enjoining 
the  party  who  made  the  contract  from  doing  that  which  he 
agreed  riot  to  do,  will  afford  relief  by  thus  preventing  the 
promisor  from  violating  his  contract.  As,  for  example,  where 
a  merchant  entered  into  a  contract  with  a  purchaser  of  his 
stock  of  goods  and  of  the  good-will  of  his  business  not  to  en- 
gage in  the  same  kind  of  business  in  the  same  city  for  a  stated 
period,  a  court  of  equity  will  by  its  writ  of  injunction  enjoin 
him  from  engaging  in  the  business  in  the  same  city  in  viola- 
tion of  his  contract.' 

Where  parties  engaged  in  the  business  of  carrying  on  a  de- 
partment store  entered  into  a  contract  with  other  parties  to 

1  People  V.  District  Court,  etc.,  29  192  III.  206,  61  N.  E.  356;  Lonsdale  v. 
Colo.  182,  68  Pac.  242.  Woonsocket.  21  R.  L  498,  44  AtL  929; 

2  Virginia.  et(5.  Ca  v.  Home  Ins.  Co.,  Equitable  Guaranty  &  Trust  Co.  v. 
51  C.  C?A.  21,  113  Fed.  1.  But  where  Donahoe  (Del.  Ch.,  1900),  4.5  Atl.  58a 
only  one  suit  has  been  commenced,  3Ti>ompsonv.  Andrus,  73Mich.551; 
an  injunction  will  not  be  granted  Oakdale  Mfg.  Co.  v.  Garst,  18  R  L 
upon  this  ground.    Andel  v.  Starke!,  484,  2  J  L.  R  A.  639. 


580  INJUNCTIONS.  [§  400. 

occup}'  fl(ior  space  for  the  sale  of  particular  articles,  agreeing 
not  to  allow  to  be  sold  on  their  premises  during  the  duration 
of  the  contract  any  other  make  of  such  articles,  it  was  held 
that  an  injunction  would  lie  against  the  parties  entering  into 
such  an  obligation  enjoining  them  from  permitting  another 
company  to  enter  or  occupy  the  said  store  and  to  sell  on  the 
premises  during  the  duration  of  the  contract  any  other  make 
of  such  articles.  The  court,  in  its  opinion,  say:  "Contracts 
which  require  the  performance  of  varied  and  continuous  acts, 
or  the  exercise  of  special  skill,  taste  and  judgment,  will  not.  as 
a  general  rule,  be  enforced  by  courts  of  equity,  because  the 
execution  of  the  decree  would  require  such  constant  superin- 
tendence as  to  make  judicial  control  a  matter  of  extreme  diffi- 
culty. .  .  .  But  even  if,  upon  a  trial  of  the  action,  specific 
performance  of  the  contract  in  its  entirety  were  refused  as 
impracticable,  still  the  bill  should  be  retained  as  one  permit- 
ting an  mjunction,  in  the  sound  discretion  of  the  court,  to  re- 
strain the  defendants  from  violating  the  negative  and  severable 
covenant."^ 

The  reason  of  the  rule  seems  to  be  that  by  an  injunction  the 
court  will  compel  the  promisor  to  either  perform  his  agree- 
ment or  lose  all  benefit  from  breaking  it,  and  at  the  same  time 
will  shield  the  promisee  from  part  of  the  loss  caused  by  a 
breach  of  the  contract  if  persisted  in.  The  inadequacy  of  a 
legal  remedy  for  damages  is  a  universal  test  of  the  jurisdiction 
of  a  court  of  equity,  and  upon  this  must  rest  the  power  of  the 
court  to  grant  the  writ  of  injunction.  "An  injunction  to  pre- 
vent the  breach  of  a  contract  is  a  negative  specific  enforce- 
ment of  that  contract,  and  the  jurisdiction  of  equity  to  grant 

1  Standard  Fashion  Co.  v.  Siegel-  wards  opens  an   office   and  under- 

Cooper  Co.,  157  N.  Y.  60,  43  L.  R.  A,  takes  to  resume  his  practice,  a  court 

854;  Goddard  v.  Wilde,  17  Fed.  846;  of  equity  will  enjoin  him  from  vio- 

Western    Union    Telegraph    Co.    v.  latin^  his  contract,  even  though  the 

Rogers,  42  N.  J.  Eq.  311;   O'Neal  v.  bill  does  not  allege  his  insolvency, 

Hines,  145  Tnd.  33,  43  N.  E.  946;  Wil-  for  the  reason  that  a  legal  remedy 

kinson  v.  CoUey,  164  Pa.  St.  35,  26  L.  for  damages  would  be  inadequate. 

R  A.  114;  Swanson  v.  Kirby.  98  Ga.  Gordon   v.  Mansfield,   84  Mo.    App. 

586,  26  S.  E.  71.     Where  a  physician  3(37;  Jackson    v.  Byrnes,   103   Tenn. 

sold  his   practice  and  good-will  to  698,  54  S.  W.  984;  A.  Booth  &  Co.  v. 

another  practitioner.  a<i;reeing  to  re-  Siebold,   74  N.  Y.   S.   776.     But  see 

frain  from  the  pursuit  of  his  profes-  Tanenbaum  v.  New  York  Fire  Ins. 

sion  within  a  given  county,  and  after-  Exch.,  68  N.  Y.  S.  342. 


§  400.] 


INJUNCTIONS. 


i87 


such  an  injunction  is  substantially  coincident  with  its  juris- 
diction to  compel  a  specific  performance  by  an  atBrmative  de- 
cree. In  either  case  a  court  of  equity  cannot  exercise  juris- 
diction unless  the  injury  apprehended  from  a  violation  of  the 
contract  is  of  such  a  nature  as  not  to  be  susceptible  of  adequate 
damages  at  law."^ 

An  apparent  exception  to  this  rule  seems  to  exist  where  the 
party  entering  into  the  contract  stipulates  that  it  may  be 
avoided  by  the  payment  of  a  certain  sum  of  money,  and  it  has 
been  held  that  where  such  a  stipulation  was  added  to  the  con- 
tract that  the  insolvency  of  the  party  making  the  promise  will 
be  no  ground  for  an  injunction  against  the  breach  of  it.  If 
the  provision  for  the  payment  of  money  in  case  of  the  breach 
of  the  contract  is  for  liquidated  damages  and  not  for  a  penalty— 
that  is,  if  by  their  contract  the  parties  have  stipulated  either 
for  the  performance  of  the  contract  or  the  payment  of  the 
money  in  lieu  thereof,— equity  will  not  interfere,  but  will  leave 
the  party  to  his  remedy  for  damages  for  which  he  has  stipu- 
lated. It  has  been  said  that  "an  agreement  for  stipulated 
damages  for  the  breach  of  a  contract  necessarily  implies  that 
such  damages  are  to  be  received  in  satisfaction  of  and  as  a 
complete  compensation  for  the  breach  of  that  part  of  the 
agreement  to  which  such  stipulation  is  applicable."  ^ 

(5)  To  restrain  the  breach  of  a  covenant  or  contract  affecting 
lands.  The  remedy  by  injunction  is  often  sought  to  restrain 
the  violation  of  covenants,  which  operate  by  way  of  restric- 
tions in  deeds  or  leases  of  land.  As,  for  example,  where  the 
vendor  or  the  lessee  has  incorporated  into  the  lease  or  the  deed 
a  provision  that  the  vendee  or  the  lessee  shall  not  sell  or  manu- 
facture intoxicating  liquors  on  the  premises,  such  covenants 
have  been  universally  held  to  be  valid,  and  the  court  of  equity 
will  enforce  them  and  enjoin  parties  from  violating  them;'  or 

1  Dills  V.  Doebler,  62  Conn.  366,  20  agreement  was  held  valid  and  not 

L,  R.  A.  4o3.  against  public  policy.     And  it  was 

2Shiell  V.  M'Nitt.  OPaigeCh.  (N.  Y.)  further  held  that  a  corporation  for 

103;  Watrous  v.  Allen,  57  Mich.  362.  whose   benefit   the  stipulation    was 

3  In  Ferris  v.   American  Brewing  made  could    enforce   the  contract, 

Co.,  155  Ind.  539,  52  L.  R.  A.  305,  306.  although    not    a   party  to    it.     The 

a  lessee  agreed  to  sell  no  other  beer  question  is  thoroughly  discussed  by 

on  the  premises  than  that  manufac-  the  court.     Among  other  things  the 

tured  by  a  designated  company.   The  court  say:  "A  contract  that  a  per- 


588 


INJUNCTIONS. 


[§  40Q. 


a  covenant  restricting  the  vendee  not  to  erect  a  building  with- 
in a  prescribed  distance  from  the  street  upon  which  the  lot 
abuts.  And  where  a  vendor  stipulated  with  the  vendee  that 
in  a  certain  event  the  latter  should  have  the  first  refusal  of 


son  will  not  engage  in  a  particular 
business  at  a  special  place  or  within 
reasonable  limits  is  not  illegal  as 
being  against  public  policy.  O'Neal 
V.  Hines.  145  Ind.  32.  B5,  36,  43  N.  E. 
946,  and  cases  cited;  Beatty  v.  Coble, 
143  Ind.  329,  41  N.  E.  590;  Eisel  v. 
Hayes,  141  Ind.  41,  40  N.  E.  119.  A 
covenant  by  a  lessee  not  to  carry  on 
a  particular  business,  or  not  to  carry 
on  any  business  except  a  business 
named,  on  the  leased  premises,  is 
binuiiig  and  may  be  enforced.  12 
Am.  &  Eng.  Enc.  Law,  1025,  1026;  1 
Beach.  In  j.,  sees.  482, 484-486;  1  High, 
Inj.,  sec.  436;  2  High,  Inj.,  sees.  1142. 
1149.  It  has  been  uniformly  iield 
that  a  provision  in  a  deed  that  no 
intoxicating  liquors  shall  be  manu- 
factured or  sold  on  the  premises  con- 
veyed is  vaiid,  however  much  the 
same  may  affect  the  value  of  the 
property  conveyed.  Co  well  v.  Springs 
Co..  100  U.  S.  57,  25  L.  Ed.  547;  Col- 
lins Mfg.  Co.  v.  Marcy,  25  Conn.  242; 
O'Brien  v.  Wetherell,  14  Kan.  616; 
Indian  Orchard  Canal  Co.  v.  Sikes, 
8  Gray,  562;  Watrous  v.  Allen,  57 
Mich.  362,  58  Am.  Rep.  363,  24  N. 
W.  104;  Smith  v.  Barrie,  56  Mich. 
314,  56  Am.  Rep.  391,  22  N.  W.  816; 
2  High,  Inj.,  sec.  1144.  It  was  held 
in  Sutton  v.  Head,  86  Ky.  156,  5  S. 
W.  410,  that  a  provision  in  a  deed 
that  'no  intoxicating  liquors  are 
to  be  sold  on  said  premises  in  less 
quantities  than  five  gallons*  is  not 
void  as  being  in  restraint  of  trade. 
It  is  said  in  Greenhood,  Pub.  PoL, 
p.  677:  'Rule  560.  And  a  contract 
which  secures  to  the  obligee  tlie  ex- 
clusive custom  of  the  party  contract- 
ing, especially  when  by  such  con- 
tract the  party  making  it  pro- 
cures an  advantage  not  otherwise 


obtainable,  is  valid,  although  the 
covenantor  be  engaged  in  public 
business,  unless  its  enforcement 
would  be  prejudicial  to  the  public' 
Among  the  illustrations  given  by 
the  author  are  the  following:  'A 
publican  in  making  settlement  with 
his  creditors  agrees  to  buy  all  his 
beer  of  them.  The  agreement  is 
valid.'  'A.  contracts  to  furnish  B. 
with  sewing  machines  at  a  discount, 
and  upon  credit,  provided  B.  will 
deal  exclusively  with  him.  The  con- 
tract of  B.  is  valid.'  '  A.  agrees  to 
buy  of  B.  all  the  groceries  he  may 
need,  provided  he  will  furnish  thena 
at  as  low  prices  as  others.  The 
agreement  is  valid.'  'A.  covenants 
not  to  buy  any  meat  for  his  trude  for 
six  months  of  any  one  but  the  cove- 
nantee. The  agreement  is  valid.' 
.  .  •  These  contracts  are  upheld 
because  they  in  no  wise  tend  to 
diminish  trade.  A  man  is  at  liberty 
to  buy  of  one  entirely,  if  he  chooses; 
and,  if  he  concludes  to  purchase 
entirely  of  him,  he  alone,  not  the 
public,  is  injured.'  It  was  held  in 
Chicago,  St.  L.  &  N.  O.  R.  Co.  v.  Pull- 
man Southern  Car  Co.,  139  U.  S.  79, 
35  L.  Ed.  97,  11  Sup.  Ct.  Rep.  490, 
that  a  railroad  company  may  grant 
to  a  sleeping-car  company  the  ex- 
clusive right  for  a  number  of  years 
to  furnish  drawing-room  and  sleep- 
ing cars  for  the  use  of  the  railroad 
company,  and  bind  itself  not  to  con- 
tract during  that  period  for  the  same 
kind  of  cars  with  any  other  party, 
and  that  such  contract  is  not  void  as 
against  public  policy,  nor  is  it  in 
restraint  of  trade.  We  know  of  no 
ruie  of  law  which  renders  invalid 
the  contract  in  said  lease  made  by 
appellant  for  the  benefit  of  appellee, 


§  400.] 


INJDNCTIONS. 


58D 


the  vendor's  land,  a  court  of  equity  has  jurisdiction  in  such  a 
case  to  restrain  the  vendor  from  dealing  with  said  land  in 
contravention  to  such  interests,  and  will  intervene  and  enjoin 
a  contemplated  breach  by  the  vendor  of  the  stipulation  before 
the  legal  estate  has  been  conveyed  to  an  intended  purchaser.^ 
And  it  has  been  held  that  where  neighboring  proprietors  of 
lots  are  bound  by  a  covenant  in  a  deed  under  which  they  hold, 
not  to  erect  buildings  within  a  prescribed  distance  from  the 
street  upon  which  the  lots  are  situated,  that  either  of  the  pro- 
prietors may  restrain  a  violation  of  this  covenant  by  the  other 
and  obtain  a  writ  of  injunction  to  enforce  an  observance  of 
the  covenant.^    But  where  the  parties  have  acquiesced  in  viola- 


and  ourattention  has  not  been  called 
to  any  case  holding  such  a  contract 
invalid.  It  is  evident  from  the  au- 
thorities cited  that  the  provision  of 
said  lease  that  appellant  is  to  sell  no 
beer  on  the  leased  premises  except 
that  manufactured  by  appellee  is 
not  void.  Counsel  for  appellant  next 
insists  that,  if  said  provision  in  the 
lease  is  valid,  appellee,  not  being  a 
party  thereto,  is  not  entitled  to  en- 
force the  same  by  injunction  or 
otherwise.  The  rule  in  this  state  is 
that  a  person  not  a  party  to  a  con- 
tract, but  for  whose  benefit  it  was 
executed,  may  enforce  his  rights 
under  the  same.  Ransdel  v.  Moore, 
153  Ind.  393,  405,  53  N.  E.  767,  and 
cases  cited;  Warren  v.  Farmer,  100 
Ind.  593;  Rodenbarj^er  v.  Bramblett, 
78  Ind.  213;  Tinkler  v.  Swaynie,  71 
Ind.  562;  Devol  v.  Mcintosh,  23  Ind. 
529.  It  is  expressly  stated  by  the 
court  in  the  special  finding,  and 
clearly  appears  from  the  lease  itself, 
that  said  provision  was  inserted  in 
said  lease  for  the  benefit  of  appellee, 
and  that  it  was  so  understood  by  the 
parties  to  the  action.  Appellee  was, 
therefore,  entitled  to  enforce  said 
agreement,  although  not  a  party  to 
the  same.  It  is  a  settled  rule  that 
provisions  in  a  lease  by  which  the 
lessee  agrees  that  he  will  not  use  the 


leased  premises  for  certain  purposes, 
or  carry  on  any  kind  of  business 
thereon  except  the  kind  named,  may 
be  enforced  by  injunction.  Beach, 
Inj.,  sees.  48-',  484-486:  1  High.  Inj., 
sec.  433;  2  High,  Inj.,  sees.  1142-1149; 
Beach,  Mo  J.  Eq.  Jur,  p.  790,  sec.  712; 
Id.,  p.  673,  sec.  603,  and  notes;  Wat- 
sou,  Comp.  Eq.  (2d  ed.)  102;  McAdam, 
Land.  &  T.490,  1226. 1  32,  1433;  VVood, 
Land.  &  T.,  sees.  85,  434;  12  Am.  & 
Eng.  Enc.  Law,  1025.  Moreover,  it 
is  a  general  rule  that  where  one  has 
made  a  valid  contract  that  he  will 
not  engage  in  a  certain  business  or 
occupation,  and  it  is  shown  that  the 
said  contract  is  being  violated  to  the 
injury  of  one  entitled  to  enforce  the 
same,  he  is  entitled  to  an  injunction 
against  the  offending  party.  This  is 
upon  tne  ground  that,  from  the 
nature  of  the  case,  just  and  adequate 
damages  cannot  be  estimated  for  a 
breach  of  the  contract;  in  other 
words,  the  remedy  at  law  is  inade- 
quate. O'Neal  V.  Hines,  145  Ind.  32, 
35,  43  N.  E.  946,  and  cases  cited;  2 
High,  Inj.,  sec.  1142;  Los  Angeles, 
etc.  Co.  V.  Muir,  136  Cal.  36,  68  Pac. 
308;  Fout  v.  Lucas,  77  N.  Y.  S.  849." 

1  Manchester,  etc.  Co.  v.  Man- 
chester, etc.  Co.,  69  L  J.  Ch.  850, 
(1900)  2  Ch.  352,  83  L.  T.  (N.  S.)  74. 

'-iMcGuire  v.  Caskey,  62  Ohio  St. 


590  INJUNCTIONS.  [§  400. 

tion  of  the  restriction  and  have  permitted  the  expenditure  of 
money,  equity  will  not  grant  them  relief.' 

(6)  To  restrain  the  unlawful  or  inequitaUe  conveyance  or  in- 
cumbrance of  property.  The  writ  of  injunction  will  be  granted 
to  restrain  the  alienation  of  property  where  it  would  result  in 
inequitable  and  irreparable  injury  or  gross  injustice,  or  operate 
as  a  fraud  upon  the  rights  or  interests  of  third  persons;  as  pre- 
venting the  negotiation  of  notes  or  bills  of  exchange  obtained 
by  fraud  or  duress,  or  other  unlawful  means,  or  when  forged, 
or  when  threatened  to  be  used  in  an  inequitable  or  unlawful 
manner;  or  the  sale  of  property  when  there  is  danger  of  mis- 
application of  the  proceeds;  or  to  defeat  the  consummation  of  a 
fraudulent  conspiracy  between  an  insolvent  debtor  and  another 
to  prevent  creditors  from  subjecting  the  proceeds  of  property  to 
the  satisfaction  of  their  claims,  especially  where  it  will  avoid  a 
multiplicity  of  suits  and  protracted  litigation.'^  To  prevent  the 
fraudulent  sale  of  real  estate,  to  avoid  executions  of  judgment 
creditors;  or  the  fraudulent  incumbrance  of  the  same;  to  en- 
join the  conveyance  of  realty  by  an  administrator  to  satisfy 
claims  against  the  estate  where  there  is  sufficient  personal 
property  to  meet  the  claims.^  To  prevent  the  conversion  and 
sale  of  timber  wrongfully  cut  from  the  lands  of  another.  To 
prevent  a  party  from  making  fraudulent  or  vexatious  sales  of 
the  subject-matter  of  a  pending  suit;  as,  for  example,  "en- 
joining a  vendor  from  conveying  the  legal  title  to  real  estate 
pending  a  suit  for  the  specific  performance  of  a  contract  for 
the  sale  of  that  estate."*  To  prevent  the  sale  of  the  goods  of 
one  manufacturer,  or  vendor,  as  those  of  another.  Such  sale 
is  held  to  be  unfair  competition  and  fraudulent  and  the  court 
of  equity  will  prohibit  it  by  its  writ  of  injunction.* 

419,  57  N.  E.  53;  Hills  v.  Metzenroth,  stock  in  pledge  from  one  not  the 

17.3  Mass.  423,  53  N.  E.  890;  Tallmadge  owner  thereof  and  not  authorized  to 

V.  Bank,  '-'6  N.  Y.  105.  pledge  the  same, and  isattempting  to 

1  Hemsley  v.  Marlborough  Hotel  have  the  stock  transferred  to  the 
Co..  62  N.  J.  Eq.  164,  50  Atl.  14.  bank  as  the  owner  thereof  upon  the 

2  Johnson  v.  Whitley  Grocery  Co.,  books  of  the  corporation,  the  trans- 
112  Ga.  449,  37  S.  E.  766;  2  Story,  fer  may  be  enjoined  at  the  suit  of 
Eq.  Jur.,  sec.  953.  the  owner.      Reynolds   v.   Touzalin 

3  Hill  V.  Mitchell,  40  Mich.  389.  Imp.  Co.  (Neb.,  1901),  87  N.  W.  24 

*  2  Danl.   Ch.  PI.  &   Pr.   (4th  ed.)        5  Shaver  v.  Heller  &  Merz  Co.,  48 
1652.    Where  a  bank  of  another  state    C,  C.  A.  48, 108  Fed.  82a 
wrongfully  received  certificates  of 


§  4U0.]  INJUNCTIONS.  591 

(T)  To  restrain  a  corporation  from  violating  its  charter.  A 
corporation  is  considered  as  a  trustee  of  the  rights  and  inter- 
ests of  the  stockholders  in  the  corporate  property  and  the  use 
of  it  for  corporate  purposes.  The  extent  of  the  powers  of  the 
corporation,  as  is  well  understood,  is  defined  by  its  charter, 
which  is  considered  as  a  contract  made  by  authority  granting 
it  on  behalf  of  the  persons  interested  in  it.  It  therefore  fol- 
lows that  this  trustee  will  be  enjoined  from  a  misuse  of  the 
powers  conferred  upon  it,  or  from  violating  its  charter,  by  re- 
fusing to  perform  duties  which  are  expressly  incumbent  upon 
the  corporation.' 

The  authorities  as  to  the  power  of  the  equity  court  to  enjoin 
the  officers  of  a  corporation  from  exercising  any  powers 
claimed  by  virtue  of  their  election  are  not  entirely  harmonious, 
but  it  would  seem  that  the  weight  of  authority  is  that  the 
court  will  not  enjoin  the  exercise  by  the  officers  of  a  corporation 
of  their  powers  to  the  extent  in  effect  of  removing  them  from 
their  offices.  It  is  undoubtedly  true,  however,  that  a  court  of 
equity  has  power  to  enjoin  or  otherwise  decree  against  any 
fraud,  misconduct  or  mismanagement,  or  acts  that  are  ultra 
vires,  or  that  would  seriously  affect  the  rights  of  stockholders. 
Or  where  the  regularity  of  the  election  of  officers  incidentally 
is  in  issue  in  determining  other  questions  involved  in  the  liti- 
gation, the  court  has  power  to  inquire  into  and  determine  tho 
validity  of  such  election  for  the  purposes  of  the  suit,  but  will 
not  go  further  and  remove  an  officer  from  an  office  except  in 
cases  where  the  authority  is  conferred  upon  the  court  by  statute 
to  do  so.- 

Abuse  of  corporate  franchises  may  always  be  prevented  by 
a  court  of  equity,  and  where  such  abuses  are  clearly  shown  to 
exist  the  court  will  interfere  by  its  writ  of  injunction.     In- 

iln  Supreme  Lodge,  etc  v.  Simer-  should  be  guilty  of  misconduct,  fraud 

ing,  88  Md.  276,  41  L.  R.  A.  720,  held  or  mismanagement,  a  court  of  equity 

that  a  court  of  equity  has  power  to  has  full  power  to  restrain  and  enjoin 

enjoin    members    of    the    supreme  them."    Shaw   v.  Davis,  78  Md.  314, 

lodge  of  a  fraternal  beneficiary  asso-  23  L.  R.  A.  294;  Barton  v.  Interna- 

ciation  from  excluding  any  properly  tional  Fraternal  Alliance,  85  Md.  14 
qualified  state  representative  from        2joIinston  v.  Jones,  23   N.  J.  Eq. 

the  right  to  vote.    In  Mason  v.  Equi-  216;  Hughes  v.  Parker,  20  N.  H.  58; 

table  League,  etc.,  77  Md.  486,  it  was  Mechanics'   Nat.   Bank  v.  Manufac- 

held  that  "  if  the  officers  of  the  order  turing  Co.,  83  N.  J.  Eq.  236. 


592  INJUNCTIONS.  [§  400. 

junctions  restraining  railways  from  exceeding  the  powers  of 
their  charter,  or  committing  irreparable  injury  to  other  per- 
sons, natural  or  artificial,  are  common  both  in  England  and  in 
this  country.^ 

In  Attorney-General  v.  Railway  Cos?  the  court  say:  "We 
cannot  state  the  rule  better  than  by  taking  it  from  the  excel- 
lent work  of  Mr.  Brice,  so  recently  given  to  the  profession. 
'  Under  many  circumstances  the  court  of  chancery  has,  on  pub- 
lic grounds,  jurisdiction  to  prevent  corporations  acting  in  vari- 
ous wavs,  or  contrary  to  the  intent  for  which  they  have  been 
created.  The  public,  however,  must  be  represented  in  all  ap- 
plications relating  to  such  matters,  and  this  is  done  by  the  in- 
tervention of  the  attorney-general.  Ko  single  person,  whether 
a  member  of  the  corporation  in  question  or  not,  is  able  on  his 
own  account,  and  of  his  own  motion,  to  call  upon  the  court  to 
interfere  for  his  special  protection.  The  wrong  he  complains 
of  is  not  confined  to  himself;  no  right  or  privilege  peculiar  to 
himself  is  violated;  the  wrongs  inflicted  and  the  rights  invaded 
affect  the  public,  and  the  public,  consequently,  must  be  a  party 
to  the  proceedings.  The  occasions  upon  M'^ich  the  court  will 
exercise  jurisdiction  to  restrain  the  doini;-  of  acts  of  this  kind 
seem  to  fall  into  the  three  following  heads.'  The  author  then 
proceeds  to  give  the  three  heads  of  jurisdiction  at  large,  which 
are  thus  classed  in  his  own  words:  '1st.  When  a  corporation 
is  abusing  powers  given  for  public  purposes;  2d,  or  is  commit- 
ting a  breach  of  trust;  3d,  or  is  acting  adversely  to  public 
policy.' " 

A  private  individual  cannot  sue  to  enjoin  a  corporation 

12  Redfield  on  Railways  (6th  ed.),  United  States  v.  Union  Pacific  Ry. 

419.  citing  Attorney-General  V.  Great  Co.,  98  U.  S.  617;   Attorney-General 

Northern  Ry.  Co..  4  De  G.  &  S.  75.  v.  Detroit,  26  Mich.  '.:66:  Attorney- 

235  Wis.  4,'5,  526;  Columbian  Ath-  General  v.  Great  Northern  Ry.  Co., 

letic  Club  V.  State  of  Indiana  ex  rel.  4  De  G.  &  S.  75:  Stot-kton  v.  Cen- 

McMahan,  143  Ind.  98.  28  L.  R.  A.  727.  tral  Ry.  Co..  50  N.  J.  Eq.  52,  17  L. 

By  information  the  attorney-general  R   A.  97.    In  Dow  v.  Northern  Ry. 

of  a  state  may  ask  the  court  of  equity  Co..  67  N.  H.  1.  36  Atl.  510.  it  was 

to  restrain   a  corporation   owing  a  held  that  non-consenting  stockhold- 

duty  to  the  public  from  doing  acts  ers  may  maintain  an  action  to  re- 

ultra  vires  or   otherwise   unlawful  strain  the  threatened  execution  of 

where  these  acts  are  injurious  to  the  an  illegal  lease  of  railroad  property, 

pubic.     Hidson   Tunnel  Co.  v.  At-  Excelsior,  etc.  Co.  v.  Brown,  20  C.  C 

toruey-Generul,    27   N.   J.    Eq.    576;  A.  428,  74  Fed.  321. 


I  400.]  INJUNCTIONS.  593 

from  violating  its  charter  unless  it  appears  that  he  is  injured 
by  the  invasion  of  his  legal  or  equitable  rights;  he  must  show- 
some  special  damage  to  himself  caused  by  reason  of  the  viola- 
tion. In  Railroad  Co.  v.  Ellerman  ^  the  court  say :  "  The  legal 
interest  which  qualifies  a  complainant  other  than  the  state  itself 
to  sue  in  such  a  case  is  a  pecuniary  interest  in  preventing  the 
defendant  from  doing  an  act  where  the  injury  alleged  flows 
from  its  quality  and  character  as  a  breach  of  some  legal  or 
equitable  duty.  A  stockholder  of  the  company  has  such  an 
interest  in  restraining  it  within  the  limits  of  the  enterprise  for 
which  it  was  formed,  because  that  is  to  enforce  his  contract  of 
membership.  The  state  has  a  legal  interest  in  preventmg  the 
usurpation  and  perversion  of  its  franchises,  because  it  is  a  trus- 
tee of  its  powers  for  uses  strictly  public.  In  these  questions 
the  appellee  has  no  interest,  and  he  cannot  raise  them  in  or- 
der, under  that  cover,  to  create  and  protect  a  monopoly  which 
the  law  does  not  give  him.  The  only  injury  of  which  he  can 
be  heard  in  a  judicial  tribunal  to  complain  is  the  invasion  of 
some  legal  or  equitable  right.  If  he  asserts  that  the  competi- 
tion of  the  railroad  company  damages  him,  the  answer  is  that 
it  does  not  abridge  or  impair  any  such  right.  If  he  alleges 
that  the  railroad  company  is  acting  beyond  the  warrant  of  tlie 
law,  the  answer  is  that  a  violation  of  its  charter  docs  not  of 
itself  injuriously  affect  any  of  his  rights.  The  company  is  not 
shown  to  owe  him  any  duty  which  it  has  not  performed." 

An  individual  stockholder  may  have  the  protection  of  the 
equity  court  by  its  writ  of  injunction  to  restrain  the  unlawful 
diversion  of  the  funds  of  the  corporation  to  purposes  not  au- 
thorized by  its  charter.  And  it  has  been  held  that  he  may 
invoke  this  remedy  even  though  he  purchase  shares  in  the 
company  for  the  purpose  of  bringing  the  action,  provided  he 
sues  in  good  faith.^  And  so  an  injunction  is  a  proper  remedy 
for  a  stockholder  where  his  rights  are  prejudiced  by  an  unau- 
thorized action  of  the  corporation  or  its  directors.' 


1  105  U.  S.  166  173;  City  of  George  1;    Forrest  v.   Railway   Co..  4  De  G., 

town   V.   Alexandria   Canal    Co.,   13  F.  &  J.  126;  Robson  v.  Dodds,  L.  R  8 

Pet.    91;     CoHtesville,    etc.     Co.    v.  Eq.  801. 

Uwchlan   St.    Co.,    18    Pa.   Snp.   Ct  »  Red  key.  etc.  Co.  v.  Orr,  27  Ind. 

524.  A  pp.  1,  CON.  E.  716. 

^Colman  v.  Railway  Co.,  10  Beav. 
88 


594  INJUNCTIONS.  [§  400. 

(8)  To  prevent  waste.  Waste  is  that  which  occasions  a  per- 
manent injury  to  the  inheritance;  as  the  cutting  of  timber; 
the  converting  of  arable  lands  into  pasture,  or  pasture  into 
arable  lands;  or  removing  articles  fixed  to  tiie  freehold;  the 
working  of  a  mine  so  as  to  produce  irreparable  damage;  the 
opening  of  new  mines  of  any  kind.  For  the  prevention  of 
waste  the  equity  court  will  issue  its  injunction.^  It  has  been 
held  that  it  is  waste  in  a  tenant  for  life  to  take  petroleum  oil 
from  the  land  for  which  he  is  liable  to  the  reversioner  or  re- 
mainderman in  fee;  that  he  may  work  open  salt  or  oil  wells  or 
mines  even  to  exhaustion  without  account,  but  cannot  open 
new  ones.  That  petroleum  oil  in  its  place  in  the  land  is  a  part 
of  the  land,  just  as  are  coal,  timber  and  oil.^  That  a  tenant  for 
life  cannot  do  anything  in  such  a  case  which  would  entail  per- 
manent injury  to  the  estate;  that  he  cannot  dig  for  gravel, 
lime,  clay,  stone,  or  the  like,  or  open  new  mines  for  minerals. 

(9)  To  restrain  the  committing  of  a  nuisance  or  its  continuance. 
It  is  said  that  an  actionable  nuisance  is  anything  wrongfully 
done  or  permitted  which  influences  or  annoys  another  in  the 
enjoyment  of  his  legal  right.'  And  a  public  nuisance  is  the  doing 
of  a  thing  to  the  annoyance  of  the  public,  or  neglecting  to  do  a 
thing  which  the  common  good  requires.  "  A  public  nuisance 
must  be  something  which  subjects  the  public  to  some  degree 
of  inconvenience  or  annoyance."^  Equity  will  restrain  the 
commission  or  continuance  of  a  nuisance  whether  it  be  public 
or  private;  if  it  be  a  public  nuisance  it  should  be  proceeded 
against  by  an  information  in  equity  at  the  suit  of  the  attorney- 
o-eneral;  for  the  restraining  of  a  private  nuisance  the  bill  may 
be  filed  by  the  person  or  persons  who  suffer  or  who  are  an- 
noyed by  it. 

The  ground  of  the  interference  of  equity  is  the  prevention 

1  Douglass  V.  ■Wio;o;ins,  1  Johns.  Ch.  711;  Williamson  v.  Jones,  43  W.  Va. 

(N.  Y.)  43o,  held  that  a  lessee  will  be  562,  38  L.  R.  A.  694. 

prevented  by  a  writ  of  injunction  2  Bettman  v.  Harness,  42  W.  Va. 

from  making  material  alterations  in  433,  36  L.  R  A.  566;  Westmoreland, 

a  dwelling-house  by  changing  it  into  etc  Co.  t.  De  Witt,  180  Pa.  St.  235,  5 

a    warehouse,    or    store,    upon    the  L.  R.  A.  731. 

ground  that  it  would  produce  great  'Railway  Co.  v.  Carr,  38  Ohio  St 

and  constant  injury  to  the  building.  453;  Cooley  on  Torts,  565. 

Bass  V.  Metropolitan,  etc  Ca,  53  U.  *  Attorney-General  v.  Evart  Boom- 

&  Apiv  542,  82  Fed.  857,  39  L.  R  A.  ing  Co.,  34  Mich.  462,  473. 


§  400.]  INJUNCTIONS.  595 

of  material  injury  to  property  or  health,  and  it  must  be  such 
an  injury,  or  the  apprehension  of  such  an  injury,  as  from  its 
nature  is  not  susceptible  of  being  adequately  compensated  for 
by  damages;  that  is,  one  for  which  there  is  no  adequate  rem- 
edy at  law  and  cannot  be  otherwise  prevented  but  by  injunc- 
tion. Some  of  the  most  common  cases  in  which  the  courts 
have  exercised  this  jurisdiction  are  to  stop  the  pollution  of 
streams,  the  diversion  of  water-courses,  and  the  rebuilding 
of  wooden  buildings  in  violation  of  ordinances.'  But  it  is 
held  that  the  court  will  not  issue  an  injunction  for  a  mere 
threatened  nuisance  unless  it  is  satisfied  that  the  threatened 
nuisance  is  inevitable.'^  And  it  has  been  held  that  the  main- 
tenance of  a  powder  magazine  where  large  quantities  of  gun- 
powder were  kept  within  a  short  distance  of  numerous  dwell- 
ings was  a  nuisance  per  se;^  and  that  the  improper  use  of  a 
grant  of  right  of  way  over  the  streets  of  a  town  by  a  railroad 
company  which  was  damaging  to  the  public  was  a  public 
nuisance.* 

(10)  To  enjoin  the  infringement  of  patents,  copyrights  or 
trade-marks.  Literary  productions,  inventions,  trade-marks 
and  trade-names  will  be  protected  by  the  court  of  equity,  and 
infringements  upon  them  enjoined.  Copyrights  granted  bj 
the  government,  trade-marks  and  patents  are  peculiarly  under 
the  protection  of  the  chancery  court  where  the  law  remedy 
fails  because  of  its  incompleteness  and  inadequacy.  The  law 
recognizes  a  property  in  these,  and  will  protect  it  in  the 
hands  of  those  entitled  to  it.  It  will  not  allow  another  to  ap- 
propriate the  labor  which  has  been  performed  in  producing  the 
copyrighted  work,  nor  even  an  intermingling  of  that  which  is 
lawful  with  that  which  is  unlawful  in  such  a  way  that  it  can- 

1  State  V.  Saunders,  66  N.  H.  39,  18  Co.,  51  W.  Va.  183,  41  S.  E.  418;  Mc- 
L.  R.  A.  646;  Paddock  v.  Somes,  103  Gregor  v.  Camden,  47  W.  Va.  193,  34 
Mo.  226,  10  L.  R  A.  254;  People  v.  S.  E.  936;  Water  Commissioners  t. 
Truokee  Lumber  Co.,  116  Cal.  397,  39  Detroit,  117  Mich.  458;  McClung  v. 
L.  R  A.  581.  North  Bend,  etc.   Co.,   18   Ohio  Cir. 

2  Windfall,  etc.  Co.  v.  Patterson,  Ct.  864;  Hockaday  v.  Wortham,  23 
148  Ind.  414,  37  L.  R  A.  381;  People's  Tex.  Civ.  App.  419,  54  S.  W.  1094; 
Gas  Co.  V.  Tyner,  131  Ind.  277,  16  L.  Tiede  v.  Schneidt,  105  Wis.  470.  81 
R  A.  443.  N.  W.  826;  Leahan  v.  Cochran,  178 

3  Kleebauer  v.  Western,  etc.  Ca,  Mhss.  506,  60  N.  K  383,  53  L.  R.  A. 
138  Cal.  497,  69  Pac.  246.  891. 

*  Town  of  Mason  v.  Ohio,  etc.   Ry. 


596  IN  JUNCTIONS.  [§  400. 

not  be  separated,  and  if  it  is  so  intermingled  the  whole  pro- 
duction will  be  treated  as  piracy.^  And  where  a  name  has 
been  adopted  as  a  trade-mark  in  the  building  up  of  a  trade  or 
business,  and  the  article  produced  becomes  known  in  the  mar- 
ket by  its  trade-mark,  another  will  not  be  allowed  to  use  the 
same  name,  or  even  a  close  imitation,  and  thus  infringe  the 
rights  of  the  party  who  first  adopted  the  tra<le-mark  and  de- 
ceive the  public.^  Nor  is  it  a  requisite  in  such  a  case  to  the 
issuing  of  an  injunction  to  prove  that  some  one  has  been  actu- 
ally deceived.' 

Where  complainants  had  by  long  continuous  business  estab- 
lished a  reputation  for  the  manufacture  of  certain  brands  of 
flour  at  a  particular  city  and  state  by  using  a  superior  quality 
of  hard  spring  wheat,  all  of  them  using  the  same  process  and 
the  same  kind  of  machinery,  their  products  being  subjected  to 
the  same  kind  of  inspection,  a  court  of  equity  will  protect  them 
to  the  extent  of  enjoining  another  from  using  upon  their  flour 
(which  is  of  a  lower  grade  and  from  different  wheat),  even  the 
name  of  the  city  and  state,  where  by  the  using  of  the  name 
they  deceive  the  public  into  believing  that  it  must  be  flour 
manufactured  from  the  same  product  in  some  of  the  same 
mills  ami  subjected  to  the  same  treatment  as  the  flour  of  com- 
plamants.     And  so  it  may  be  said  that  equity  will  not  permit 

1  Equity  will   protect  copyrights,  to  mix  my  literary  matter  with  his 

Banks  V.  MoDivitt.  li  Blatchf.  (U.  S.)  own,    he   must   be  restrained    from 

16  i.     In   Mawnian   v.  Tegg,  2  Russ.  publishing  the  literary  matter  which 

38.%  391.  as  quoted  by  the  supreme  belongs  to  me;  and  if  the  parts  of 

court  of  the  United  States  in   Cal-  the  work  cannot  be  separated,  and 

lagiian   v.  Myers,   VZS  U.  S.  617.  666,  if   by   that   means    the   injunction, 

Lord    Eldon    said:     ''If    the    parts  which  restrained  the  publication  of 

winch  have  been  copied  cannot  be  my   literary   matter,    prevents   also 

separated  from  those  which  are  orig-  the  publication  of  his  own  literary 

inal.  without  destroying  the  use  and  matter,    he     has    only    himself    to 

value  of  the  original  matter,  he  who  blame."    West  Pub.    Co.    v.   Co-Op. 

has  made  an  improper  use  of  that  Pub.  Co.,  25  L.  R  A.  441. 

which   did  not  belong  to  him  must  ^Qppermann  v.  Waterman,94Wis. 

suffer  the  consequences  of  so  doing.  583,   69   N.  W.  569;    New  Eng.    etc. 

If  a  man  mixes  what  belongs  to  him  Co.    v.    Marlborough,    etc.    Co.,    168 

with  what  belongs  to  me.  and  the  Mass.    154,   46   N.    E.    386;    Paker  v. 

mixture  be  forbidden  by  the  law,  he  Sanders,  51  U.  S.  App.  421,  80  Fed. 

must  again  separate  them,  and  he  889,  26  C.  C.  A.  220. 

must  bear  all  the  mischief  and  loss  ^Bank   of  Tomah   v.    Warren,  94 

which  the  separation  may  occasion.  Wis.  151,  68  N.  W.  549. 
If  an  individual  chooses  in  any  work 


§  400.] 


INJUNCTIONS. 


59T 


such  unfair  competition,  but  will  by  its  writ  of  injunction  en- 
join the  defendants  from  carrying  on  such  a  business  to  the  in- 
jury of  those  who  are  rightfully  and  equitably  entitled  to  the 
reputation  as  manufacturers  that  they  have  made  for  them- 
selves.^ 

A  court  of  equity  will  not  permit  one  to  sell  his  own  goods 
under  the  pretense  that  they  are  the  goods  of  another.  He 
will  not  even  be  permitted  to  use  means  which  will  contribute 
to  the  deception  of  those  who  purchase  from  him.^  And  so 
jealously  does  the  court  protect  the  business  and  name  of  one 
who  has  established  a  business  under  a  particular  name,  that  in 
many  cases  they  have  given  relief  against  the  use  of  defend- 
ant's own  name.^  And  the  reason  for  the  rule  seems  to  be 
that  the  words  by  which  the  product  is  known  have  by  long 
use  acquired  such  a  meaning  that  they  stand  for  and  designate 
the  goods  of  the  particular  dealer,  so  that  the  use  of  the  words 
if  allowed  to  another  would  confuse  the  public  and  deceive 
those  who  purchase  the  product.  But  the  complainant,  if  he 
would  have  the  protection  of  the  court,  must  come  with  clean 
hands,  and  when  he  has  himself  been  guilty  of  fraud  in  that 
he  deceives  the  public  by  the  trade-mark  adopted,  as  where 
the  trade-mark  is  used  to  indicate  that  the  goods  are  the  pro- 
duction of  a  foreign  country,  the  court  of  equity  will  not  lend 
its  aid  to  further  or  protect  a  scheme  to  thus  defraud.* 

The  court  of  equity  will  protect  one  against  the  infringe- 
ment of  a  patent  obtained  or  owned  by  him  where  he  cannot 
obtain  an  adequate  remedy  at  law.  But  to  authorize  an  in- 
junction in  advance  of  a  decree  upon  the  merits  there  must  be 
no  reasonable  doubt  of  the  infringement,  and  the  rights  of  the 
patentee  must  be  clear,  and  if  there  has  been  no  prior  adjudi- 
cation in  favor  of  the  validity  of  the  patent  there  must  be 
shown  to  be  such  continued  public  acquiescence  in  the  exclu- 

1  PiUsbury- Washburn,  etc.  Co.  v.  A  pp.  421,  80  Fed.  889,  26  C.  C.  A.  220; 
Eagle,  86  Fed.  608,  41  L.  R.  A.  163;  Stuart  v.  Stewart  Co.,  91  Fed.  243; 
American  Waltham  Watch  Ca  v.  Garrett  v.  Garrett.  24  C.  C.  A.  173,  78 
United  States  Watch  Co.,  173  Mass.  Fed.  472;  Simmons  Medicine  Co.  v. 
85,  43  L.  R  A.  82&  Simmons,  81  Fed.  163. 

2  Singer  Mfg.  Co.  v.  June  Mfg.  Ca,  *ConneIl  v.  Reed,  128  Mass.  477,  35 
163  U.  S.  198.  Am.   Rep.   397;   Laird  v.  Wilder,  9 

3  Russia  Cement  Ca  v.  Lepage,  147  Bush  (Ky.),  131, 15  Am.  Rep.  577. 
Mass.  206;  Baker  v.  Sanders,  51  U.  S. 


B98  INJUNCTIONS.  [§  400. 

give  right  asserted  as  to  raise  a  prosumption  of  validity  not 
arising  from  the  patent  merely;  and  generall}'^  a  preliminary 
injunction  will  not  be  granted  where  the  patent  has  been 
recently  issued,  and  where  the  validity  of  the  patent  as  well  as 
the  attack  upon  it  rests  wholly  upon  ex  parte  testimony,  and 
where  the  patent  is  not  conceded  to  be  valid  and  there  has 
been  no  judgment  at  law,  or  otherwise,  sustaining  it.' 

Where  the  infringement  is  grave  and  difficult  and  it  is  not 
clearly  shown  that  the  defendant  is  guilty,  a  temporary  in- 
junction should  not  be  granted  on  ex  parte  affidavits.'^ 

(11)  To  prevent  tortious  or  criminal  acts,  conspiracies  and 
combinations.  "Where  acts  that  are  committed  by  a  defendant 
constitute  criminal  offenses  and  will  result  in  irreparable  in- 
jury to  property  rights,  a  court  of  equity  has  jurisdiction  to 
enjoin  such  acts,  and  as  a  general  rule  it  may  be  said  that 
equity  will  give  relief  by  preventing  tortious  or  criminal  acts, 
either  by  persons  severally  or  who  are  combined  for  that  pur- 
pose, where  there  is  no  adequate  remedy  at  law  and  the  injury 
threatened  or  being  committed  is  irreparable.  So  it  has  been 
held  that  where  workmen  by  combining  together  attempt  to 
injure  their  employer's  business  through  concerted  acts  of  vio- 
lence, a  court  of  equity  will  grant  an  injunction  against  such 
actions  when  irreparable  injury  is  inflicted  either  upon  the  em- 
ployer or  other  workmen;  and  that  labor  organizations  en- 
gaged in  a  strike  who  attempt  to  prevent  the  employer  from 
carrying  on  his  business  by  preventing  other  men  from  labor- 
ing for  him  or  continuing  in  his  service  by  committing  assaults, 
establishing  pickets  around  and  about  the  entrances  of  the 
premises,  threatening  and  intimidating  the  workmen  to  an  ex- 

1  Williams  v.  Breitling.  etc.  Co.,  77  initted,  the  presumption  arising  from 

Fed.  2b5;   Bowers,   etc.   Co.  v.  New  the  patent  was  deemed  sufficient  to 

York,  etc.  Co.,  77  Fed.  980;  Nilssou  v.  warrant  the  issuing  of  an  injunction 

Jefferson,  78  Fed.  866;  American,  etc  when  the  infringement  clearly  ap- 

Co.  V.  Phoenix,  etc.   Co.,  51  C.  C.  A.  peared.    Seidenberg  v.  Davidson,  113 

339,  113  Fed.  629;  McDowell  v.  Kurtz,  Fed.  431;  Thomson-Houston  Electric 

23  C.  C.  A.  119,  77  Fed.  206.     Where  Co.  v.  Exeter,  etc.  Ca,  110  Fed.  986. 

there  had  been  no  adjudication  sus-  A    continuing    infringement,    how- 

taining  the  patent,  and  its  validity  ever,  is  ground  for  preliminary  in- 

was  contested,  a  preliminary  iujunc-  junction. 

tion  will  not  be  granted  if  the  patent        ^  Stearns-Rogers  Mfg.  Co.  v.  Brown, 

be  of  recent  date;  but  where  tiiere  is  52  C.  G  A.  559,  114  Fed.  939;  3  Foster's 

no  prior  patent  or  publication  sub-  Fed.  Pr.,  sec.  216  and  notes. 


§  401.] 


INJUNOTIONS. 


599 


tent  that  they  dare  not  leave  the  works  through  fear  of  bodily 
injury  and  are  therefore  compelled  to  remain  there,  may  be  re- 
strained by  the  writ  of  injunction  for  the  reason  that  they  are  not 
pursuing  lavA'ful  methods  and  are  engaged  in  a  conspiracy  to 
stop  the  business  of  the  employer  by  intimidation  and  violence.^ 
While  it  is  a  general  rule  that  a  court  of  equity  will  not  stay 
criminal  proceedings  or  entertain  a  bill  to  determine  the  ques- 
tion whether  the  complainant  has  been  guilty  of  violating 
criminal  or  penal  statutes,  and  enjoin  threatened  prosecution 
thereunder,  nevertheless  it  will  protect  civil  rights  or  property 
interests,  and  the  fact  that  incidental  thereto  a  crime  or  statu- 
tory offense  must  be  enjoined  will  not  operate  to  deprive  the 
court  of  its  jurisdiction.'^ 

Several  Kinds  op  Injunotions. 

§  401.  Kinds  of  injunctions.— Injunctions  may  be  divided 
into  three  general  classes:  {1)  Mandatory  injunctions,  or  iniunc- 
tions  which  require  the  doing  of  some  particular  thing;  (2)  in- 
junctions that  are  preventive,  such  as  restrain  and  enjoin  the 
doing  of  a  meditated  wrong  or  injury —  injunctions  that  are 
preventive  depending  upon  the  time  they  are  to  continue  in 
force  and  classified  as  interlocutory  injunctions,  commonly 
called  temporary  or  preliminary  injunctions,  which  continue 
during  the  pendency  of  the  suit,  or  until  the  further  order  of 
the  court;  and  (3)  perpetual  injunctions^  which  are  granted 
only  by  the  final  decree  in  the  cause. 

(1)  Mandatory  injunctions  are  very  rarely  granted  before  a 
final  hearing.*    They  will,  however,  if  the  necessity  is  great. 

1  AUis-Chainiers    Ca    v.    Reliable  inal  acts  enjoined  where  property 

Lodge,  111  Fed.  264  rights  violated  and  no  adequate  rem- 

"■*  Christie,  etc.  Co.  v.  Board  of  edy  at  law.  In  re  Debs,  158  U.  S. 
Trade,  etc.,  93  111.  App.  604,  and  94  565,  593;  Railway  Co.  v.  McConnell, 
IlL  App.  229;  Southern  Express  Co.  v.  82  Fed.  65;  Crawford  v.  Tyrrell,  138 
Cityof  Ensley,  116  Fed.  756.  It  has  N.  Y.  341,  28  N.  K  514;  Cumber- 
been  1  eld  that  the  owners  of  oyster  land,  etc  Co.  v.  Glass,  etc.  Ass'n,  59 
beds  may  prevent  the  unlawful  tak-  N.  J.  Eq.  49,  46  AtU  208;  Barr  v. 
ing  of  oysters  therefrom  by  an  in-  Essex,  etc,  53  N.  J.  Eq.  101,  30  AtL 
junction  where  the  persons  commit-  881;  Coeur  d'Alene,  etc  Co.  v.  Min- 
ting the  depredations  are  involved,  ers'  Union,  51  Fed.  260,  19  L.  R.  A. 
although  the  taking  is  indictable  383;  Vegelahn  v.  Guntner,  167  Masa 
under  the  criminal  laws.  Jones  v.  93,  35  L.  R  A.  733,  44  N.  E.  1077. 
Oemler,  110  Ga.  302,  35  a  E.  375;  3  Union  University  v.  Green,  1  Md 
Smith  V.  Smith,  105  Ga.  106.    Crim-  Ch.  97;  Rogers,  etc  Works  v.  Erie 


600  INJUNCTIONS.  [§  401. 

be  granted  on  an  interlocutory  application.'  The  rule  seems 
to  be  that  a  mandatory  injunction  will  be  granted  by  the  court 
of  equity  upon  a  preliminary  hearing  to  enforce  a  duty  which 
is  defined  by  law  where  the  rights  of  the  parties  are  free  from 
doubt;  as  where  a  railroad  company  filed  a  bill  to  compel 
other  railroad  companies  and  other  defendants  to  receive  from 
it  and  to  deliver  to  it  freight  and  cars  destined  from  one  state 
to  another,  commonly  known  as  interstate  freight,  alleging 
that  such  defendants  were  violating  the  interstate  commerce 
act  by  giving  unreasonable  and  undue  advantage  to  other  per- 
sons and  companies,  the  court  held  that  an  injunction  was 
properly  issued  on  an  interlocutory  application.^ 

It  would  seem  that  in  certain  cases  the  development  of  the 
interests  of  the  public  in  the  progress  of  trade  and  traffic  by 
new  methods  of  intercourse  and  transportation  often  require 
this  procedure  in  a  court  of  equity,  and  it  is  thought  and  held 
that  the  equity  court  in  the  exercise  of  its  powers  and  proced- 
ure is  sufficiently  elastic  to  meet  the  increasingly  complex  re- 
lations continually  arising  and  demanding  the  exercise  of  its 
jurisdiction.  It  must,  however,  always  be  kept  in  mind  that 
equity  will  refuse  its  relief  where  there  is  a  plain  and  adequate 
remedy  at  law,  and  will  not  grant  its  injunction  if  it  will  cost 
the  defendant  many  times  more  loss  than  the  complainant  will 
suffer.* 

Ry.  Co.,  20  N.  J.  Eq.  (5  C.  R  Green),  supposed  rule  of  court  that  a  man- 

379;  Citizens'  Coach  Co.  v.  Canaden,  datory  injunction   cannot  properly 

eta  Co.,  29  N.  J.  Eq.  299;  Delaware,  be  made  except  at  the  hearins;  of 

eta  R  Co.  v.  Central  Stockyard,  43  the  causa     I  never  heard  of  such  a 

N.  J.  Eq.  75;  Audenried  v.  Philadel-  rule.     Lord  Cottenham  was,  so  far 

phia,  etc.  R.  Ca,  68Pa.  St.  370;  Hooper  as  1  know,  the  first  judge  who  pro- 

V.  Broderick,  11  Sim.  47.  ceeded  by  way  of  mandatory  injunc- 

J  In  New  Iberia,  etc.  Ca  v.  Romero,  tion,  and  he  took  great  care  to  see 
105  La.  439,  29  Sa  876,  it  was  held  that  the  party  applying  was  entitled 
that  a  mandatory  injunction  might  to  relief  in  that  shape."  Coe  v.  Louis- 
be  issued  ex  parte  requiring  the  re-  ville,  etc.  R.  Co.,  8  Fed.  775;  Chicago, 
moval  of  an  obstruction  where  its  etc.  R.  Co.  v.  New  York,  L.  E.  &  W. 
continuance  subjects  the  plaintiff  to  R  Co.,  24  Fed.  516;  Chicago,  B.  «fe  Q. 
an  injury  forbidden  by  a  writ  of  pro-  R.  Co.  v.  Burlington,  etc.  R  Co..  34 
hibition.  Fed.  481;  In  re  Lennon,  166  U.  S.  548. 

•■^.Toledo,  eta  Ry.  Ca  v.  Pennsyl-  »  Potter  v.  Street  Ry.  Co.,  83  Mich, 

vania  Co.  et  al.,  54  Fed.  730,  19  L.  R.  285,  298;   Ives  v.  Edison,  124  Mich. 

A.  395;  Beadel  v.  Perry,  L.  R  (Eq.)  402.     A  mandatory  injunction  was 

465,  where  the  vice-chancellor  said:  allowed  to  compel  an  electric  light- 

"  Reference    has  been    made    to    a  ing  company  to  remove  one  of  their 


§  401.] 


INJUNCTIONS. 


601 


A  mandatory  injunction  has  been  allowed  where  one  was 
driven  from  the  possession  and  management  of  property  bv 
one  who  entered  by  force  and  assumed  control  of  the  same.^ 
And  where  defendants  unlawfully  dumped  dirt  to  the  depth 
of  several  feet  on  lots  belonging  to  the  plaintiff  and  thus 
greatly  lessened  their  value,  the  plaintiff  was  held  entitled  to 
a  mandatory  injunction  for  the  removal  of  the  dirt,  as  there 
was  no  adequate  remedy  at  law  for  the  continuing  trespass.'^ 
A  mandatory  injunction  was  allowed  to  remove  a  wrongful 
obstruction  to  a  drain,  on  application  of  one  who  had  a  right, 
in  the  nature  of  a  personal  easement,  to  the  unobstructed  flow 
of  water  through  the  drain;'  and  to  compel  a  fiscal  court  of 
a  county  to  surrender  to  a  board  of  health  the  control  of  a  pest 
house.*  And  where  the  furnishing  of  gas  was  regulated  by 
ordinance  which  required  the  company  to  agree  with  the 
council  on  reasonable  terms,  such  duty  and  regulations  beino- 

poles  from  in  front  of  the  plaintiflF's  1  Colly.  Ch.  Rep.  507,  on  a  motion  for 
property  where  it  appeared  that  an  interlocutory  injunction:  <  That 
there  was  no  necessity  for  it,  and  it  injunctions  in  substance  mandatory 
was  there  more  for  the  purpose  of  though  in  form  merely  prohibitory, 
annoying  and  injuring  the  owner  have  been  and  may  be  granted  by 
and  depreciating  the  value  of  his  the  courts,  is  clear.  This  branch  of 
property.  Snyder  v.  Fort  Madison, 
etc.  Ry.  Co.,  105  Iowa,  284,  41  L.  R.  A. 
345.  In  Schmidt,  Trustee,  etc.  v. 
Louisville,  eta  R  Co.,  101  Ky.  441,  it 
was  held  that  a  court  of  equity 
would  grant  its  mandatory  injunc- 
tion to  compel  the  speciiic  perform- 


its  jurisdiction  is  not  fit  to  be  exer- 
cised without  particular  caution,  but 
certainly  is  one  fit  and  necessary 
under  certain  circumstances.'  See 
also  Lane  v.  Newdigate,  10  Ves.  Jr. 
192;  Greatrex  v.  Greatrex,  1  De  G.  «fe 
S.  692;  Evitt  v.  Price.  1  Sim.  483; 
ance  of  the  contract  of  a  lease  to     Broome  v.  New  York  &  N.  J.  Teleph. 


operate  a  railroad  for  a  term  of 
years.  Chicago,  etc.  Co.  v.  New 
York,  etc.  Ry.  Co.,  24  Fed.  516;  Wil- 
lamette Iron  Works  v.  Oregon,  etc. 
Co.,  26  Oreg.  224,  29  L.  R.  A.  88. 
In  Central  Trust  Ca  v.  Moran,  56 
Minn.  188,  29  L  R.  A.  212,  214.  it  was 
held,  "that  courts  of  equity  may 
issue  injunctions  in  effect  manda- 
tory is  now  well  settled,  though  they 
have  been  chary  in  exercising  the 
power,  so  much  so  as  to  usually  put 
the  injunction  in  the  prohibitory 
form.  As  said  by  the  vice-chancel- 
lor in  Great  North  of  England,  C.  & 
H.  Junction  R.  Ca  v.  Clarence  R.  Co., 


Co.,  42  N.  J.  Eq.  141;  Whiteraan  v. 
Fayette  Fuel  Gas  Co.,  139  Pa.  St. 
492;  all  cases  of  interlocutory  injunc- 
tions, mandatory  in  substance." 
Budd  v.  Camden,  etc.  Co.,  63  N.  J. 
Eq.  804,  48  Atl.  1038;  Mackintyre  v. 
Jones,  9  Pa.  Sup.  Ct.  543. 

1  Pokegama,  etc.  Co.  v.  Klamath 
River,  etc.  Co.,  86  Fed.  528. 

^Enoe  V.  Christ,  54  N.  Y.  a  400; 
Gillick  V.  Williams,  53  Neb.  14a 

3  Hunt  V.  Sain,  181  111.  372,  54  N.  E. 
970. 

*  Henderson  Co.  Board  v.  Ward, 
107  Ky.  477,  54  S.  W.  725. 


602  INJUNCTIONS.  L§  ^01- 

disregardpd,  the  court  may  compel  obedience  by  mandatory 
injunction. •  But  a  mandatory  injunction  will  not  be  permitted 
wlierc  the  right  on  which  the  complainant  founds  his  claim 
is  a  niMtter  of  law  unsettled,  and  will  only  issue  to  prevent  a 
failure  of  justice  where  liis  right  is  clearly  established.'^  While 
the  court  seems  averse  to  the  compelling  of  a  positive  act,  it 
will  often  undertake  to  attain  the  same  result  by  granting  a 
prohibitory  injunction  restraining  the  defendant  from  perform- 
ing the  reverse  of  what  is  desired.  As  where  a  government 
oflBcer  has  interrupted  the  usual  course  of  business  of  his  office, 
a  court  of  equity  will  prevent  the  continuance  of  such  interrup- 
tion, although  incidentally  it  would  compel  the  officer  to  do 
certain  acts  necessary  in  the  ordinary  course  of  busin-'ss.' 

This  subject  was  ably  discussed  by  Judge  Sawyer  in  the  case 
of. Cole,  etc.  Mining  Co.  v.  Virginia,  etc.  Co.*  In  the  opinion 
he  says:  "The  court  will  not,  on  motion  for  a  preliminary  in- 
junction, issue  a  mandatory  writ,  affirmatively  commanding 
the  performance  of  an  act,  such  as  to  fill  up  a  tunnel,  rebuild  a 
wall  that  has  been  demolished,  and  the  like;  and  so  the  au- 
thorities seem  to  be.  But,  while  this  seems  to  be  an  established 
rule,  it  also  appears  to  be  w^ell  established  that  the  result  sought 
may  be  accomplished  by  an  order  merely  restrictive  in  form. 
For  example,  if  the  water  of  a  stream  be  raised  by  means  of  a 
dam,  so  as  to  wrongfully  flood  a  party's  land  above,  or  obstruct 
with  back-water  a  mill  situated  higher  up  the  stream,  while 
the  court  will  not  direct  the  defendant  in  terms  to  remove  the 
dam,  it  will  require  him  to  refrain  from  overflowing  the  land, 
or  obstructing  the  mill,  even  though  it  be  necessary  to  demol- 

1  And  where  a  court  modified  a  son  might  afterwards  enforce  corn- 
temporary  injunction  restraining  in-  pliance  with  the  order  to  remove  the 
terference  with  the  construction  of  track  even  though  the  or  ler  would 
a  spur  track  by  a  railroad,  and  a  fur-  be  in  the  nature  of  a  m,.ijdatory  in- 
ther  construction  of  the  same,  by  junction.  Way-Cross  R.  Co.  v.  South- 
permitting  the  conspauy  to  relay  a  ern,  etc.  Co.,  Ill  Ga.  233,  36  S.  E. 
portion  of  its  track  in  order  to  move  641, 

its  engines,  on  condition  that  if  or-  ^Citizens',  etc,  Co.  v.  Camden,  etc. 

dered  by  the  court  it  would  remove  Co..  29  N.  J.  Eq.  299;  Buettgenbach 

such  track  from  the  land  on  which  v.  Geibig  (Neb..  1903).  90  N.  W.  6.54. 

it  was  laid,  it  was  held  that  the  com-  '  Fairfield,  etc.  Co.  v.  Bradbury,  87 

p^iny  by  relaying'  its  track  to  remove  Fed.  415. 

the  engine    accepted    the    impo.-^ed  <  1  Sawy.  (U.  S.  C.  C.)  470,  482;  and 

condition,  and  the  court  for  this  rea-  see  cases  cited  on  pages  488,  483. 


I  401.]  INJUNCTIONS.  603 

ish  the  dam  in  order  to  obey -the  injunction.  So  if  a  party,  by 
means  of  a  dam  or  canal,  should  wrongfully  divert  the  water 
of  a  stream  from  the  mill  of  his  neighbor,  clearly  entitled  to 
It,  the  court  would  restrain  the  continuance  of  the  diversion, 
even  though  an  obedience  to  the  injunction  would  render  it 
necessary  to  remove  the  dam  or  fill  up  the  canal." 

(2)  Injunctions  that  are  preventive.    In  these  are  included,  as 
we  have  seen,  interlocutory  injunctions  which  comprise  tem- 
porary or  preliminary  injunctions.     They  are  allowed  to  con- 
tinue during  the  pendency  of  the  suit  or  the  further  order  of 
the  court,  for  where  the  bill  prays  for  a  perpetual  injunction 
a  preliminary  or  temporary  injunction  is  issued  to  stay  pro- 
ceedings until  the  final  hearing.     They  may  be  obtained  upon 
an  ex  parte  application  where  the  exigencies  of  the  case  are 
very  great  and  so  urgent  that  great  and  irreparable  injury 
might  result  in  postponing  the  granting  of  the  writ  until  no- 
tice could  be  given  to  the  opposite  party,  all  of  which  must 
appear  in  the  allegations  of  the  bill  and  by  affidavits  presented 
to  the  court  upon  the  ex  parte  application.     Or,  upon  applica- 
tion supported  by  the  bill,  affidavit  or  other  proof,  and  served 
upon  the  defendant;  or  upon  filing  the  bill  the  judge  of  the 
court  may  make  an  order  upon  the  defendant  to  show  cause 
why  an  injunction  should  not  issue.     The  granting  of  a  tem- 
porary or  preliminary  injunction  is  merely  provisional,  and  is 
generally  ordered  to  continue  until  the  hearing  or  the  further 
order  of  the  court,  and  in  no  way  does  the  granting  of  the  writ 
conclude  the  rights  of  the  parties;  they  are  issued  simply  to 
preserve  or  protect  the  property  which  is  in  litigation  until 
the  hearing  of  the  cause.     Where  doubtful  questions  of  fact 
and  law  are  involved  in  the  case,  the  court  will  not  enter  upon 
the  merits,  but,  to  preserve  the  property  and  the  rights  of  the 
parties  in  statu  quo  until  the  final  hearing,  will  grant  a  prelimi- 
nary injunction.^    It  has  been  said  that  "  the  controlling  reason 
for  the  existence  of  the  right  to  issue  a  preliminary  injunction 

1  Cartersville,   etc.  Co.    v.    City  of  reasonable    doubt,  and   allege    acts 

Cartersville,  114  Fed.  699;   State  v.  done    or    threatened    by   defendant 

New  Orleans,  etc.  Co.,  107  La.  562,  32  which  will  seriously  or  irreparably 

So.  103;  Ruddy  v.  Myton,  19  Pa.  Sup.  injure  his   rights  unless  restrained. 

Ct  319.     Prerequisite  to  allowing  a  Stevens  v.  Missouri,  etc.  Co.,  45  C.  C. 

preliminary  injunction  the  complain-  A.  611,  106  Fed.  771. 
ant  must  show  a  clear  title  free  from 


604  INJUNCTIONS.  [§  -iOl. 

is  that  the  court  may  thereby  prevent  such  a  change  of  the 
conditions  and  relations  of  persons  and  property  d-iring  the  liti- 
gation as  may  result  in  irremediable  injury  to  some  of  the 
parties  before  their  claims  can  be  investigated  and  adjudicated. 
When  the  questions  to  be  ultimately  decided  are  serious  and 
doubtful,  the  legal  discretion  of  the  judge  in  granting  the  writ 
should  be  influenced  largely  by  the  consideration  that  the  in- 
jury to  the  moving  party  will  be  certain,  great  and  irreparable 
if  the  motion  is  denied,  while  the  inconvenience  and  loss  to 
the  opposing  party  will  be  inconsiderable,  and  may  well  be 
indemnified  by  a  proper  bond,  if  the  injunction  is  granted.  A 
preliminary  injunction  maintaining  the  status  quo  may  properly 
issue  whenever  the  questions  of  law  or  fact  to  be  ultimately 
determined  in  a  suit  are  grave  and  difficult,  and  injury  to  the 
moving  party  will  be  immediate,  certain  and  great  if  it  is  de- 
nied, while  the  loss  or  inconvenience  to  the  opposing  party 
will  be  comparatively  small  and  insignificant  if  it  is  granted." ' 
But  these  interlocutory  or  preliminary  injunctions  will  not  be 
granted  where  the  plaintiff's  right  is  doubtful  or  his  legal 
remedy  is  adequate.'^ 

The  remedy  is  a  harsh  one,  and,  unless  it  is  necessary  to  pre- 
vent grave  and  practically  irreparable  injury  to  the  plaintiff, 
it  will  not  be  allowed.'  It  is  a  settled  rule  that  a  preliminary 
injunction  is  not  a  matter  of  strict  right;  it  rests  largely  in  the 
sound  discretion  of  the  court,  which  will  not  be  interfered  with 
except  in  cases  where  it  is  improvidently  exercised.*  They  are 
issued  to  protect  the  plaintiff  from  an  injury  for  which  he  has 
no  adequate  remedy  at  law;  and  where  the  application  does 
not  show  affirmatively  by  affidavits  or  otherwise  that  such  in- 
jury will  result  if  the  writ  is  not  granted,  the  court  will  refuse 

1  City  of  Newton  v.  Levis,  25  C.  C.  Fed.  98;  Hadden  v.  Dooley,  38  U.  S. 

A.  161,  163,  79  Fed.  715;  Fredericks  App.  651.  20  C.  C.  A.  494.  and  74  Fed. 

V.  Huber,  180  Pa.  St.  572,  37  Atl.  90;  429;  Jensen  v.  Norton,  29  U.  S.  App. 

Great  Western  Ry.  Ca  v.  Birming-  121, 13  C.  C.  A.  608,  and  64  Fed.  662. 

ham  &  O.  J.  Ry.  Co..  2  Phil.  Ch.  597,  2  Keating  v.  Fitch,  35  N.  Y.  S.  641. 

602;  Glascock  v.  Lang,  3  Mylne  &  C.  s Capitol  City  Gas,  etc.  Co.  v.  Des 

451,  455;  Slirewsbury,  etc.  Ry.  Co.  v.  Moines.  72  Fed.  829. 

Shrewsbury,  etc.  Ry.  Co.,  1  Sim.  (N.  *  U.  S.  etc.  v.  Seaman,  51  C.  C.  A. 

S.)  410,  4:6;  Georgia  v.  Brailsford,  2  419,  113  Fed.  745;  Allen  v.  Pedro,  136 

Dall.  402;  Blount  v.  Societe  Anonyme  Cat  1,  68  Pac.  99. 
du  Filtre,  6  U.  S.  App.  631,  and  53 


C    402.1  INJUNCTIONS.  605 

it.^  Perpetual  injunctions  are  never  allowed  until  the  final 
hearing  of  the  cause,  when  the  court  determines  whether  the 
defendant  should  be  perpetually  enjoined  from  doing  the  act 
for  which  the  temporary  injunction  has  already  been  allowed. 
If  it  is  determined  by  the  court  that  the  defendant  should  be 
perpetually  enjoined  it  is  so  stated  and  adjudged  in  the  final 

decree. 

Peockdurb. 

§  402.  The  bill  of  complaint.— There  raustalways  be  a  pend- 
ing action  before  an  injunction  will  be  allowed.  A  bill  must 
be°filed  asking,  in  the  prayer  for  relief  and  for  process,  for  the 
issuance  of  the  injunction.  The  plaintiff  in  his  bill  of  com- 
plaint must  show  sufficient  reason  for  the  granting  of  the  writ, 
and  it  has  been  said  "there  is  no  power  the  exercise  of  which 
is  more  delicate,  which  requires  greater  caution,  deliberation 
and  sound  discretion,  or  more  dangerous  in  a  doubtful  case, 
than  the  issuing  an  injunction.  It  is  the  strong  arm  of  equity 
that  never  ought  to  be  extended  unless  to  cases  of  great  injury 
where  courts  of  law  cannot  afford  an  adequate  or  commensu- 
rate remedy  in  damages.'"^ 

Three  general  rules  belonging  to  this  subject  have  been  con- 
sidered of  paramount  importance: 

''First.  It  is  entirely  settled  that  a  preliminary  injunction 
will  never  be  ordered  unless  from  the  pressure  of  an  urgent 
necessity.  The  damage  threatened  to  be  done  and  which  it 
is  legitimate  to  prevent  during  the  pendency  of  the  suit  must 
be,  in  an  equitable  point  of  view,  of  an  irreparable  charac- 
ter.    .     .     . 

''Second.  No  rule  of  equity  is  better  settled  than  the  doc- 
trine that  a  complainant  is  not  in  a  position  to  ask  for  a  pre- 
liminary injunction  when  the  right  on  which  he  founds  his 
claim  is,  as  a  matter  of  law,  unsettled.     ... 

"  Third.  The  general  rule,  subject  to  but  few  exceptions,  is 
that  if  the  facts  constituting  the  claim  of  the  complainant  for 
the  immediate  interposition  of  the  court  are  controverted  under 
oath  by  the  defendant,  the  court  will  not  interfere  at  the  initial 
stage  of  the  cause."  * 

1  Miller  v.  Mutual,  etc.  Ass'n,  109  Baldw.  (U.  S.)  205,  217,  the  words  of 
Fed.  278.  Judge  Baldwin  in  the  opinion. 

2  Bonaparte  v.  Camden,  etc.  R.  Co.,        ^The  rules  given  in  the  text  are 


606  INJUNCTIONS.  .  [§  402. 

Because  of  the  harshness  of  the  remedy  and  the  delicacy  of 
the  duty  of  the  court,  the  bill  of  complaint  must  contain  alle- 
arations  which  are  certain  and  convincing  as  to  all  the  mate- 
rial  facts  necessary  to  support  the  case  made  by  the  bill. 
While  the  rule  does  not  require  that  all  the  facts  alleged  shall 
be  stated  upon  the  personal  knowledge  of  the  complainant,  it 
does  require  that  facts  that  are  stated  upon  information  and 
belief  should  be  supported  by  the  affidavit  of  the  informant. 
But  the  scope  of  the  bill  cannot  be  enlarged  by  affidavits. 
"The  case  with  its  grounds  for  relief  must  be  made  by  the 
bill  itself."  '  And  generally  it  may  be  said  an  injunction  bill 
should  be  sworn  to  by  the  plaintiff  who  files  it.  This,  however, 
is  not  an  absolute  requisite,  and  is  necessary  more  to  prevent 
the  dissolution  of  the  writ  than  to  obtain  its  issuance. 

It  has  been  held  that  the  writ  of  injunction  may  be  granted 
where  the  bill  is  filed  for  discovery  and  the  allegations  in  it 
clearly  show  that  the  reasons  for  its  issuance  are  within  the 
knowledge  of  the  defendant;  but  from  whatever  source  the 
facts  alleged  in  the  bill  may  come,  it  must  be  made  to  clearly 
appear,  and  with  such  degree  of  certainty  that  will  satisfy  the 
court,  that  the  allegations,  whether  upon  personal  knowledge 
of  the  complainant  or  upon  information  and  belief,  or  alleged 
for  the  purpose  of  discovery,  are  true.'^ 

Mere  apprehension  or  fear  of  the  complainant  that  he  is  to 
be  damaged  or  suffer  irreparable  injury  at  the  hands  of  the 
defendant,  unless  it  is  supported  by  affidavits  or  proof  that 
will  convince  the  court  that  it  is  real  impending  danger,  will 
not  be  sufficient  upon  which  to  base  an  injunction.  The  facts 
must  appear  either  by  positive  allegations  in  the  bill  or  by 

taken  from  the  opinion  of  the  oliief  stated  with  reasonable  certainty  and 

justice  in  Citizens',  etc.  Ca  v.  Cam-  precision  and  not  inconclusive  and 

den  Horse  R.  R,  Co.,  29  N.  J.  Eq.  299,  uncertain.      Conway    v.    Township 

303,  304.  :jOe  Board,  15  Mich.  257:  Tye  v.  Catching, 

iLeo  V.Union   Pacific  R  Co.,  17  78  Ky.  463,  where  the  rule  was  laid 

Fed.  273.  down  "  that  the  statement  of  the 

2  Mayor  v.  Rains,  107  Ala.  691.     In  cause  of  action  should  be  set  fortii 

Spence  v.  Duren,  3  Ala.  251,  253,  the  with  such  particularity  as  to  enable 

court  held   that   the  allegations  of  the   chancellor,  from  an  inspection 

the  bill  were  of  too  vague  and  un-  of  the  petition  alone,  to  grant  relief 

certain  a  character  to  call  for  a  dis-  sought."      Hallett   v.   Cumston.   110 

closure;  that  the  allegations  should  Mass.  29;  Moore  v.  Clenr  Laire  Wat  r 

be    positive    and    certain,   at    least  Works,  68  Cal.  140. 


I  403.]  INJUNCTIONS.  607 

proof  supporting  the  case  made  by  the  bill  to  warrant  the 
court  in  issuing  the  writ.'  And  so  it  may  be  generally  said 
that  the  allegations  in  the  bill  must  be  certain  and  positive; 
and  if  allegations  are  made  upon  information  and  belief  they 
should  be  supported  by  the  affidavit  of  persons  having  actual 
knowledge  of  the  facts  alleged,  and  tiiese  affidavits  should  be 
attached  to  the  bill  of  complaint.  The  bill  of  complaint,  as  a 
general  rule,  should  be  signed  by  the  plaintiff  and  vs  rihed ;  in 
other  words,  the  case  should  be  so  made  by  the  bill  and  ;;ffi- 
davits  attached  to  it  that  the  judge  may  determine  that  ali 
the  allegations  necessary  to  support  the  injunction  are  proven 
by  the  bill  and  the  affidavits. 

§  403.  Obtaining  the  writ.— The  method  of  obtaining  the 
writ  of  injunction  is  very  largely  regulated  by  statutes  in  the 
different  states.  There  may,  however,  be  said  to  be  three 
methods  of  procedure  for  obtaining  an  interlocutory  injunc- 
tion. (1)  By  ex  parte  application,  usually  made  at  the  time  of 
the  filing  of  the  bill;  (2)  by  obtaining  an  order  on  the  defend- 
ant to  show  cause  why  an  injunction  should  not  issue,  and 
(3)  by  an  application  by  petition  served  upon  the  defendant  with 
affidavits  attached,  upon  which  the  plaintiff  relies  to  support 
his  petition;  the  petition  containing  a  statement  or  notice  of 
any  further  proof  that  the  applicant  expects  to  present  for  the 
consideration  of  the  court. 

(1)  Ex  parte  application.  The  bill  of  complaint  must  be  on 
file  in  the  office  of  the  register  in  chancery  or  the  clerk  of  the 
court  before  the  writ  can  issue,  and  it  has  been  held  that  the 
writ  of  injunction  cannot  issue  before  the  issuing  of  a  writ  of 
subpoena;^  and  that  the  service  of  injunction  without  subpoena 
would  be  irregular.'    But  the  application  must  be  made  with- 

1  In  Goodwin  v.  New  York,  etc.  exercised  with  great  caution,  never 
Co.,  43  Conn.  494,  500,  the  court  say:  without  the  most  satisfactory  rea- 
"No  court  of  equity  should  ever  sons.  Not  the  applicant  only,  but 
grant  an  injunction  merely  because  the  court,  must  be  satisfied  that  a 
of  the  fears  or  apprehensions  of  the  wrong  is  about  to  be  done,  or  an  in- 
party  applying  for  it.  Those  fears  jury  is  about  to  be  sustained,  which, 
or  apprehensions  may  exist  without  practically,  will  be  irreparable,  be- 
any substantial  reason.  Indeed  they  fore  resort  should  be  had  to  this  ex- 
may  be  absolutely  groundless.     Re-  treme  power." 

straining  the  action  of  an  individual  ^  Peltier  v.  Peltior,  Harr.  (Mich.)  19. 

or  a  corporation  by  injunction  is  an  *  Sullings  v.  Goodyear  Co.,  36  Mich, 

extraordinary  power,  always  to  be  313. 


608  INJUNCTIONS.  [§  403. 

out  delay,  for  if  there  has  been  any  delay  or  acquiescence  on 
the  part  of  the  plaintiff  the  court  may  refuse  the  injunction  on 
an  ex  parte  application.  As  a  genf^ral  rule  courts  are  averse  to 
granting  injunctions  without  notice  to  the  opposite  party.  And 
they  will  only  grant  the  writ  ex  parte  to  prevent  impending  ir- 
reparable injury  that  is  so  imminent  as  to  demand  immediate 
protection  at  the  hands  of  the  court,  and  when  to  postpone  it 
a  sufficient  length  of  time  to  give  ti.e  defendant  notice  might 
defeat  the  object  of  the  bill.  It  i  as  been  said,  "  where  the  nat- 
ure of  the  act  to  be  restrained  is  such  that  an  immediate  stoppage 
of  it  is  absolutely  necessary,  to  protect  property  from  destruc- 
tion, or  where  the  mere  act  of  giving  notice  to  the  defendant,  of 
the  intention  to  make  the  application,  might  b;%  of  itself,  produc- 
tive of  the  mischief  apprehended,  by  inducing  him  to  acceler- 
ate the  act,  in  order  that  it  might  be  complete  before  the  time 
for  making  the  application  should  have  arrived,  the  court  will 
award  the  injunction  without  notice,  or  even  before  service  of 
the  copy  of  the  bill."^ 

Ordinarily  the  practice  is  to  present  a  verified  bill  of  com- 
plaint and  the  affidavits  of  persons  attached  thereto  who  know 
the  facts  alleged  in  the  bill  upon  in  formation  and  belief  thereinas 
well  as  other  facts  relied  upon,  to  the  judge  of  the  court  at  his 
chambers,  or  wherever  he  may  hear  the  application,  and  apply 
to  him  for  the  writ;  for  this  application  need  not  be  presented 
to  the  court,  but  it  may  be  allowed  by  the  judge  of  the  court. 
If  the  exigencies  of  the  case  are  such,  in  the  opinion  of  the 
judge  to  whom  application  is  made,  as  to  demand  an  immedi- 
ate issuance  of  the  injunction,  he  will  indorse  upon  the  bill  an 
order  to  the  register  or  clerk  of  the  court  in  substance  as  fol- 
lows: "'On  filing  the  within  bill  of  complaint  let  an  injunc- 
tion issue  as  therein  prayed."  But  a  strong  case  must  be  set 
forth  in  the  bill  and  the  proofs  must  be  clear  and  certain  to 
induce  the  judge  or  the  court  to  make  such  an  order.-  It  has 
been  held,  and  is  no  doubt  the  universal  rule,  that  an  injunc- 
tion will  not  be  granted  without  notice  to  the  opposite  party, 
unless  it  appears  by  sworn  statement,  either  in  the  bill  of  com- 
plaint or  by  affidavits  accompanying  it,  that  the  rights  of  the 

1  2  Danl.  Ch.  PL  &  Pr.  (4th  ed.)  1664;  Wing  v.  Fairhaven,  8  Cush.  (Mas&) 
863,  364;  Jones  v.  Magill,  1  Bland  (Md.).  177. 

2  New  Music  Hall  Co.  v.  Orpheon  Music  Hall  Co.,  100  111.  App.  378. 


§  403.]  INJUNCTIONS.  609 

complainant  will  be  unduly  prejudiced  if  notice  is  given 
oeiore  the  writ  issues.  The  only  reason  for  granting  an  ex 
parte  injunction  is  to  avoid  damage  or  irreparable  injury  that 
might  be  occasioned  or  precipitated  by  the  giving  of  notice 
that  an  a{>plication  for  the  writ  is  made.'  So  a  preliminary 
injunction  will  not  be  granted  when  the  effect  of  it  would  be 
to  change  the  possession  of  the  property  in  question,  as  this 
would  give  an  undue  and  inequitable  advantage  to  the  plaintiff, 
the  object  in  granting  the  writ  being  to  preserve  the  present 
status  until  the  final  hearing,  and  the  court  will  go  no  farther 
than  this.'^  Where  the  affidavit  of  the  complainant  merely 
stated  that  his  rights  would  be  unduly  prejudiced  if  an  injunc- 
tion was  not  issued  immediately  without  notice,  and  there  was 
no  showing  of  facts,  either  in  the  bill  of  complaint  or  by  affi- 
davits, to  sustain  such  conclusion,  it  was  held  that  an  injunc- 
tion should  not  issue.'  Whilea  mandatory  injunction  will  not 
usually  be  granted  exparte^  it  has  been  held  that  such  a  writ  will 
issue  ex  parte  where  the  exigencies  of  the  case  are  very  great.* 
(2)  By  obtaining  an  order  on  the  defendant  to  show  cause 
why  an  irijunction  should  not  issue.  If  it  appears  to  the  court, 
or  the  judge  to  whom  the  application  is  made  for  an  injunc- 
tion, that  the  case  is  not  one  where  the  exigencies  are  so  great 
as  to  warrant  the  issuing  of  the  writ  ex  parte^  or  where  the 
solicitor  applies  for  an  order  to  show  cause,  such  an  order  will 
be  ;^ranted  after  the  bill  is  filed  and  the  case  is  pending.  The 
order  is  directed  to  the  defendant  and  usually  designates  the 
time  of  service  and  the  time  and  place  of  hearing.    This  order 

1  Suburban,  etc.  Co.  v.  Naugle,  70  90  Md.  278,  44  Atl.  1024,  citins;  several 

111.  A  pp.  384.  Maryland  cases.     But  wliere  the  bill 

2Bettman   v.   Harness,  42  W.  Va.  of  complaint  seeks  to  put  tlie  com- 

433,  38  L.  R.  A.  566.  plainant    in    possession    of    certain 

3  General  Gas  Co.  v.  Stuart,  69  III  premises  by  enjoining  defendant,  or 

A  pp.  r)(iO.  in  any   way   preventing    him  from 

*  Nevv^  Iberia,  etc,  Co.  V.  Romero,  105  entering  and  quietly  enjoying   the 

La.  439.     The   Maryland   court    hiis  same,  and  an  affidavit  accompanies 

held  tiiat  a  restraining  order  granted  the  bill,  alleging  that  the  rigiits  of 

at  the  time  of  filing  of  the  bill  and  the  complainant  will  be  prejudiced 

before  an   answer  should  never  go  if  the  injunction  is  not  issued  im- 

iarther  than  to  suspend  defendants  mediately,  it  was  held  insufficient  to 

action    until  an  opportunity   is  af-  justify  an  injunction  without  notice, 

forded  him  to  answer  and  defend.  Leiter  v.  Baude,  99  III  App.  64.    See 

L,  A.  Thompson,  etc  Co.  v.  Young,  ante,  §  401,  subd.  (1). 
39 


610  INJUN0TION8.  [§  403. 

must  be  served  upon  the  defendant,  who  may  appear  in  com 
plianct'  with  it  and  interpose  his  objections  and  present  counter- 
affidavits  and  proofs  for  the  consideration  of  the  court,  which, 
if  merely  in  answer  to  the  bill,  or  affidavits  attached  or  filed 
with  it,  need  not  be  served  upon  the  applicant  to  entitle  them 
to  be  presented  and  considered  by  the  court.  And  the  plaint- 
iff cannot  in  such  case  present  further  affidavits  to  dispute  or 
contradict  them,  but  if  the  affidavits  introduced  by  the  defend- 
ant contain  new  matter,  the  plaintiff  will  be  permitted  to 
meet  the  new  matter  by  counter-proofs.  And  usually  where 
the  hearing  is  upon  an  order  to  show  cause,  the  defendant 
presents  and  files  his  answer  to  the  bill  of  complaint,  and  if  he 
can  do  so  fully  meets  all  the  equities  in  the  bill,  denying  them 
upon  his  own  knowledge,  if  he  can,  and  presenting  affidavits 
as  to  matters  answered  upon  information  and  belief  and  other 
matters  alleged  in  the  bill.  Formerly  upon  such  an  answer 
the  court  would  refuse  to  grant  the  writ  of  injunction  applied 
for,  but  that  cannot  be  said  to  be  the  rule  at  the  present  time; 
for  it  is  generally  held  that  the  answer  denying  the  allega- 
tions of  the  bill  of  complaint  is  like  an  affidavit  of  the  defend- 
ant, its  effect  being  subject  to  the  consideration  which  the 
court  may  give  it.  And  it  is  a  rule  that  such  denials  only 
apply  when  the  right  to  do  the  act  restrained  is  in  issue.'  But 
usually  a  preliminary  injunction  will  not  be  granted  upon  a 
bill  and  answer,  or  upon  a  bill,  answer  and  affidavits,  where  all 
the  equities  of  the  bill  are  denied  in  the  answer  and  affidavits.^ 
Formerly  in  the  United  States  courts  preliminary  injunctions 
were  granted  only  upon  notice;  this  was  required  by  statute.^ 
But  the  provision  of  the  judiciary  act  requiring  notice  in  such 
cases  has  been  repealed,  so  that  the  court  may  grant  a  restrain- 
in  «•  order,  without  notice,  to  remain  in  force  until  the  decision 
of  the  court  upon  the  application  for  an  injunction.* 

iHerzog  v.  Fitzgerald,  77  N.  Y.  S.  Large,  ch.  22,  sec.  5;  Mowrey  v.  In- 

366;  Milwaukee,  etc.  Co.  v.  Bradley,  dianapolis,  etc.  Co.,  4  Biss.  (U.  S.)  78. 

108  Wis.  467,  84  N.  W.  870;  Quayle  v.  "Sec.   718,   Rev.   Stat.  U.   S.    1874. 

Bayfield  Co.,  114  Wis.  108,89  N.  W.  "Whenever    notice    is    given  of   a 

892;  Warren  R.  Co.  v.  Clarion  Ca,  54  motion  for  an  injunction  outof  acir- 

Pa.  St.  28.  cuit  or  district  court,  the  court  or 

2  Citizens'  Coach  Co.  v.  Camden,  judge  thereof  may,  if  there  appears 

etc.  Co..  29  N.  J.  Eq.  299.  to  be  danger  of  irreparable  injury 

5  Judiciary  Act,  1793;  U.  S.  Stat  at  from  delay,  grant  an  order  restrain- 


o  4,^)3   I  INJUNCTIONS.  61i 

(3)  By  an  applioation  ly  petition  servea  upon  tJie  defendcmL 
The  third  method  of  proceedirvg  is  by  making,  filing  and  serving 
a  petition  setting  forth  clearly  and  with  reasonable  certainty 
the  crround  upon  which  the  injunction  is  sought  and  the  proofs 
upon  which  the  applicant  depends;  if  upon  affidavits,  they 
should  be  attached  to  the  petition,  which  petition  should  be 
verified  by  the  applicant  or  some  person  duly  authorized  to  do 
so  in  his  behalf;  to  this  petition  should  be  affixed  a  notice  to 
the  defendant  stating  the  time  and  place  and  before  whom  the 
petition  is  to  be  heard.     A  copy  of  this  application,  with  the 
affidavits  attached  and  with   the  notice  of  hearing,  must  be 
served  on  the  defendant  or  his  solicitor  within  the  time  required 
by  the  rules  of  practice,  and  proof  of  service  should  be  made 
to  the  court,  if  required,  at  the  hearing.     The  defendant  may 
appear  and  oppose  the  application  and  may  present  counter 
attidavits  without  serving  them  upon  the  plaintifi",  if  they  are 
in  answer  to  the  proofs  of  the  plaintiff  or  the  allegations  in 
the  bill  of  complaint,  and  the  plaintiff  will  not  be  allowed  to 
reply  to  these  unless  the  defendant  by  his  affidavits  presents 
new  matter,  in  which  case  the  plaintiff  may  present  and  file 
counter  affidavits.     At  the  hearing  of  this  application,  the  bet- 
ter practice  is  for  the  defendant  to  present  and  file  his  answer 
to  the  allegations  of  the  bill,  and  if  all  the  equities  of  the  bill 
are  met  and  denied,  it  will  be  considered  by  the  court  and 
given  such  weight  as  the  court  may  deem   it  worthy.      In 
some  jurisdictions    it    has    been  held   that   such    an   answer 
would  be  sufficient  to  defeat  the  application,  but  the  more 
satisfactory  rule  seems  to  be  that  the  answer  will  stand  as  an 
affidavit  of  the  defendant.' 

ing  the  act  sought  to  be  enjoined  regarded  merely  as  an  affidavit  of 

until  the  decision  upon  the  motion;  the   defendant;  and  affidavits  may 

and  such  order  may  be  granted  with  be  received  and  read  in  opposition 

or  without  security,  in  the  discretion  thereto."    2  Danl.  Ch.  PI.  &  Pr.  (4th 

of  the  court  or  judge."  ed.)  1668,  citing  Poor  v   Carleton,  3 

1"  Formerly  the  answer  was  taken  Sumn.  (U.  S.)  8d,  in  which  Mr.  Jus- 

to  be  true;    and   affidavits,   except  tice   Story  uses  the   following   lan- 

under  special  circumstances,  could  guage:  "Tbe   practice   in    America 

not  be  read  against  it;  but  now.  in  has,  I  believe^  become  more  liberal 

applications  for  an  injunct:on.  or  to  than  it  is  in  England;  and  if  it  were 

dissolve  an  injunction,  the  defend-  necessary  I  should  not  hesita  e  to 

ant's  answer  is.  for  the  purpose  of  admit  affidavits  to   contradict  the 

evidence  on  such  application,  to  be  answer  for  the  purpose  of  continu- 


612  INJUNCTIONS.  [§  404. 

§  404.  The  order,  writ,  or  interlocutory  decree. —  If  the 

writ  is  granted  upon  an  ex  parte  application,  the  order  is 
usually  quite  informal  —  merely  a  direction  to  the  register  or 
clerk  to  issue  the  writ  on  filing  the  bill  of  complaint.  If  the 
application  is  for  an  order  to  show  cause  why  an  injunction 
should  not  be  granted,  the  order  generally  recites  the  fact  that 
the  court  has  read,  or  heard  read,  the  bill  of  complaint  and 
the  affidavits  attached  thereto  in  support  of  it,  and  after  con- 
sidering the  same  it  is  ordered  that  the  defendant  show  cause 
at  a  certain  time  and  place  why  an  injunction  should  not  issue, 
and  contains  a  further  order  that  within  a  certain  time  a  cop\' 
of  the  order  to  show  cause  be  served  upon  the  defendant,  which 
operates  as  a  notice  of  hearing.  Upon  the  hearing  of  the  ap- 
plication, whether  it  be  by  an  order  to  show  cause,  or  by  pe- 
tition supported  by  the  bill  of  complaint  and  affidavits,  the 
court,  if  the  application  be  granted,  makes  an  order  usually  re- 
citing the  form  and  the  substance  of  the  facts  of  the  applica- 
tion, and  strictly  commanding  and  enjoining  the  defendant, 
his  agents  and  attorneys,  and  each  of  them,  that  they  forth- 
with and  until  the  further  order  of  the  court  desist  from  doing 
or  performing  the  particular  acts  or  things  that  are  asked  to 
be  enjoined  in  the  bill  of  complaint,  specifying  with  particu- 
larity in  the  order  what  they  are.  This  order  should  be  suffi- 
ciently definite  so  that  there  can  be  no  misunderstanding  as 
to  what  is  the  scope  and  meaning  of  the  injunction,  and  that 
the  writ  that  issues  may  follow  the  order,  and  when  served 
upon  the  defendant  will  sufficiently  apprise  him  of  that  which 
he  is  restrained  from  doing. 

Upon  obtaining  the  order  for  an  injunction,  the  party  ob- 
taining it  is  entitled  to  have  a  writ  issued  at  once  from  the 
office  of  the  register  in  chancery  or  the  clerk  of  the  court.  If 
the  party  delays  and  is  guilty  of  laches  in  obtaining  the  writ 
granted  by  the  order,  it  may  lose  its  force  by  lapse  of  time; 
and  where  six  weeks  elapsed  after  an  order  granting  the  writ, 
before  the  writ  was  tested  and  issued,  the  court  refused  to  pun- 
ish the  defendant  for  a  violation  of  it,  holding  that  after  the 
lapse  of  so  much  time  there  should  have  been  an  order  applied 
for  for  leave  to  use  the  writ.^    An  order  for  a  permanent  in- 

ing  or  even  of  granting  a  special  in-    arise."    Robrecht  v.  Robrecht,  46  W. 

junction  where  I  perceive  that  with-    Va.  738,  34  S.  E.  801. 

out  it   irreparable   mischief  would        i  2   Danl.   Ch.  PL  &  Pr.   (4th  ed.) 


§  405.]  INJUNCTIONS.  613 

junction  can  only  be  made  at  the  final  hearing,  for  it  is  a  part 
of  the  final  decree;  in  it  the  interlocutory  injunction  will  be 
made  permanent;  or  if  the  court  should  find  that  the  final  or 
permanent  injunction  should  differ  from  the  interlocutory  in- 
junction then  in  force,  the  decree  should  particularly  state  that 
which  the  defendant  is  permanently  enjoined  from  performing 
or  doing. 

§  405.  Injunction  bond.—  The  requiring  of  a  bond  upon  the 
issuing  of  an  injunction  is  regulated  more  or  less  by  statutes 
in  the  several  states.  Where  the  statute  requires  a  bond  to  be 
given  upon  the  issuing  of  the  writ,  the  court  has  no  discretion 
in  the  matter,  but  is  bound  to  require  the  bond  to  be  executed 
and  delivered  as  required  by  the  statute  and  in  accordance 
with  its  provisions.'  But  in  cases  where  the  statute  does  not 
require  a  bond,  the  court  has  large  discretionary  powers  in  the 
matter  of  requiring  a  bond  before  the  issuance  of  the  writ. 
The  writ,  as  has  often  been  said,  is  a  harsh  remedy,  often  making 
violent  changes  in  the  business  affairs  and  prospects  of  the  de- 
fendant, and  if  the  case  is  at  all  doubtful  the  court  ought  to 
require  the  plaintiff  to  enter  into  an  undertaking  that  would 
secure  compensation  to  the  defendant  for  any  damage  that  he 
might  wrongfully  suffer  because  of  the  issuance  of  the  writ.^ 
But  where  the  plaintiff's  right  is  clear  and  the  defendant's  in- 
fraction of  that  right  is  established,  the  court  will  not,  unless 
required  by  statute,  require  a  bond  of  the  plaintiff  to  protect 
the  defendant  against  damages  that  might  be  incurred  by 
reason  of  the  injunction.'  But  usually  where  the  writ  prayed 
for  is  to  restrain  the  collection  or  a  judgment,  a  bond  will  be 
required;  the  amount  of  the  bond  resting  in  the  discretion  of 
the  court.*     In  the  exercise  of  this  discretion  the  court  may 

1673;     McCorroick     v.     Jerome,     3  188;  Staflfords  v.  King,  83C.  C.  A.  536, 

Blatchf.  486;  Bateman  v.  Wiatt,  11  90  Fed.  136. 

Beav.  587.  4  Greenberg  v.  Holmes.  100  111.  App. 

1  Roberts  v.  Pipkin,  63  S.  C.  252,  41  186.  And  it  was  held  that  where  an 
S.  E.  800;  Mclntyre  v.  Marlboro  order  required  a  bond  to  be  given  in 
Wholesale  Grocery  Co.,  63  S.  C.  favor  of  each  of  the  defendants,  a 
^52.  bond  given  in  favor  of  the  defend- 

2  Marquis  of  Downshire  v.  Lady  ants  jointly  is  not  a  compliance  with 
Sandys,  6  Ves.  Jr.  107;  Lowenfeld  v.  the  order.  Speyrer  v.  Miller,  108  La. 
Curtis,  72  Fed.  105.  204,  32  So.  524;  N.  Y.  Bank  Note  Ca 

3  Dodd  V.  Flavell.  2  C.  E.  Green  (N.  v.  Kerr,  77  III.  App.  53:  Hyatt  v.  City 
J.),  255;  Potter  v.  Potter,  69  N.  Y.  S-  of  Washington,   20  Ind.    App.    148; 

Smith  V.  Smith,  51  S.  C.  379. 


614  INJUNCTIONS.  [§  400. 

imposs  terms  upon  the  plaintiff  as  a  condition  to  be  performed 
before  granting  the  order  for  the  writ,  and  that  condition  may- 
be the  giving  of  a  bond  to  the  defendant;  for  it  has  been  said 
to  be  "a  settled  rule  of  the  court  of  chancery,  in  acting  on 
applications  for  injunctions,  to  regard  the  comparative  injury 
which  would  be  sustained  by  the  defendant,  if  an  injunction 
were  granted,  and  by  the  complainant,  if  it  were  refused.  And 
if  the  legal  right  is  doubtful,  either  in  point  of  law  or  of  fact, 
the  court  is  always  reluctant  to  take  a  course  which  may  re- 
sult in  material  injury  to  either  party;  for  the  damage  arising 
from  the  act  of  the  court  itself  is  damnum  absque  injuria,  for 
which  there  is  no  redress  except  a  decree  for  the  costs  of  the 
suit,  or,  in  a  proper  case,  an  action  for  malicious  prosecution. 
To  remedy  this  difficulty,  the  court,  in  the  exercise  of  its  dis- 
cretion, frequently  resorts  to  the  expedient  of  imposing  terms 
and  conditions  upon  the  party  at  whose  instance  it  proposes 
to  act.  The  power  to  impose  such  conditions  is  founded  upon, 
and  arises  from,  the  discretion  which  the  court  has  in  such 
cases  to  grant  or  not  to  grant  the  injunction  applied  for.  It 
is  a  power  inherent  in  the  court  as  a  court  of  equity,  and  has 
been  exercised  from  time  immemorial.'" 

§  406.  Dissolution  or  modification  of  the  injuiiction. — 
The  procedure  for  the  dissolution  of  an  interlocutory  injunc- 
tion is  by  petition,  founded  upon  affidavits  usually  accompa- 
nied by  the  sworn  answer  of  the  defendant  to  the  bill  of  com- 
plaint, if  the  injunction  was  allowed  ex  parte  and  before  the 
coming  in  of  the  answer.  The  petition  with  the  afUdavits  at- 
tached must  be  served  upon  the  complainant  or  his  solicitor, 
with  notice  of  the  time  and  place  of  hearing.  Formerly  it  was 
held  that  the  plaintiff  could  not  set  up  new  matter  in  defense 
of  such  a  petition,  but  the  rule  now  seems  to  be  that  the 
plaintiff  may  present  further  affidavits  if  they  are  within  the 
scope  of  the  case  made  by  the  bill.'^  Upon  the  hearing  of  the 
petition  the  court  may  continue  the  injunction,  modify  it  or 
dissolve  it,  as  in  its  discretion  seems  equitable  and  just;  or,  if 
there  appears  to  be  doubt,  he  may  continue  the  injunction  and 
require  a  bond,  if  one  has  not  already  been  executed  for  the 

1  Russell  V.  Farley,  105  U.  S.  433,  ZArmstead  v.  Smith,  115  Ga.  428, 
438;  Kerr  on  Injunctions,  209.  210,  41  S.  K  583;  Armstrong  v.  Sweeney 
212.  (Neb.,  1902),  91  N.  W.  570. 


P   ^QQ  -1  INJUNCTIONS.  '-'^'- 

protection  of  the  defendant;  or,  if  a  bond  has  been   ordered 
and  executed  and  it  appears  that  it  is  not  su&cient,  a  further 

bond  may  be  required.  .       ,    c       ^ 

A  motion  to  dissolve  may  be  made  at  any  time  before  decree, 
even  before  process  is  served  upon  the  defendant  and  before  he 
has  appeared  in  the  cause.   And  where  the  injunction  has  been 
allowed  against  several  defendants  any  one  or  ni^re  o    them 
may  move  to  dissolve  it,  but  in  such  case  it  has  been  held  that 
all  of  the  parties  to  the  suit,  plaintiffs  and  defendants,  should 
be  served  with  notice  of  the  motion.^  Where  the  bill  on  which 
the  injunction  was  granted  is  found  to  be  insufficient  upon 
demurrer,  the  injunction  should  be  dissolved."^     And  it  is  gen- 
erally held  that  an  appellate  court,  to  preserve  the  subject  ot 
the  appeal  so  that  it  can  render  an  efficacious  decree    may 
continue  an  injunction,  or  modify  it,  as  seems  meet  and  ]ust. 
Where  an  injunction  was  granted  to  restrain  a  trustee  from 
sellino-  land  under  a  deed  of  trust  on  the  ground  of  usury  m 
the  debts  secured,  and  it  appeared  that  there  was  no  usury  in 
the  debt,  it  was  held  the  injunction  should  be  dissolved.    And 
where  a  bond  is  required  by  statute  before  the  granting  of  a 
writ  an  order  for  an  injunction  is  not  considered  effectual 
until  the  bond  is  executed;  ^  but  the  court  will  not  dissolve  an 

I  Kerr  on  Injunctions.  560;  Danl.  that  the  defendant  could  not  be  en- 

Ch  PI  &Pr.(5th  ed.)  1675;  Shields  joined   from  withdrawing  his  own 

MrClune  6  W  Va.  79;  Thompson  money  from  banks  in  which  he  liad 

V.  McClung,  6  W.  va.  /  deposited    it.     Gusdorff    v.    Schleis- 

''^ZloJ.Zd!!:  16  C.  C.  A.  593.  ner.  85  Md.  860.  37  AtK  170;  Spiller  v 

-70  fT  12  Spiller,  3  Swanst.  o57,   where  Lord 

3P^enns;ivaniaRy.  Co.  v.  National.  Eldon.  in  delivering  the  opinion  of 

etc  Co    ?4  N.  J.  Eq   647,  35  Atl.  433.  the  court,  said:    "I  wish  it  to  be  un- 

4WaUerson  v.  Miller.  43   W.  Va.  derstood  as  my  opinion,  that,  m  gen- 

108^4  S.K  578.     And  where  there  eral.  on  a  bill  for  the  specific  per- 

l!;  uncertainty  in   the   order  and  formance  of  an  agreement  to  sell. 

The  writTwa    held  t  the  plaintiff  is  not  entitled   to  re_ 

tion'hoald  be  dissolved.     Crescent  strain  the  owner  from  dealing  with 

Zing  Co.  V.  Silver  King.  14  Utah,  his  property.     A  different  doctrine 

W    45  Pac.    1093.     And   where  suit  would  operate  to  control  the  rights 

was  brought  by  one  partner  to  com-  of  the  ownership,  although  the  agree- 

;Tthe  ot'her  to  specifically  perform  ment  was  such  as  couM  not  be  per- 

?he  partnership  articles  by  maUing  formed."    Supreme  ^t.  of  L    O- 

payments    according    to    the     cov-  Supreme  Ct  of  U.  O.  Foresters,  94 

wound  up  by  a  receiver,  it  was  said    554. 


616  INJUNCTIONS.  [§  40G. 

injunction  merely  upon  the  ground  of  the  insufficiency  of  the 
bond,  but  will  usuallv  orrant  a  reasonable  time  within  which 
to  file  a  new  bond,  continuing  the  injunction  in  force  in  the 
meantime.' 

The  rule  is  somewhat  general  that  an  ex  parte  injunction  will 
be  dissolved  upon  the  filing  of  a  sworn  answer  which  fully  and 
unequivocally  denies  all  the  material  allegations  in  the  bill. 
The  denials  must,  however,  be  of  a  positive  character.  But 
this  rule  is  sometimes  relaxed  where  from  the  nature  of  the 
case  the  defendant  cannot  know  and  therefore  cannot  deny  the 
allegations  upon  personal  knowledge;  in  such  case  to  warrant 
a  dissolution  of  the  injunction  there  should  be  filed  with  the 
answer  affidavits  of  persons  who  can  positively  deny  the  facts 
thus  alleged  upon  information  and  belief.  However,  this  rule 
cannot  be  said  to  obtain  in  all  cases,  at  least  the  authorities  are 
not  harmonious ;  for  it  is  held  in  some  jurisdictions,  and  it  seems 
to  be  the  better  rule,  if  not  having  the  weight  of  authority, 
that  the  court  will  give  to  the  answer  the  same  weight  that  is 
given  to  other  proofs  adduced  at  the  time  of  the  hearing. 
There  can  be  no  good  reason  why  the  answer  of  a  defendant 
should  prevail  against  a  sworn  bill  supported  by  proofs  and 
afiidavits  of  persons  who  swear  positively  to  the  facts  alleged. 
It  would  seem  in  such  cases  that  the  court  may  weigh  the  evi- 
dence adduced  and  render  a  decree  in  conformity  with  the 
proofs  as  they  appear  to  the  court.  Especially  is  this  true  in 
cases  where,  after  considering  the  bill  and  the  affidavits  sub- 
mitted, there  is  still  a  strong  presumption  that  the  case  made 
by  the  bill  will  be  established  and  that  irrevocable  injury 
might  result  if  the  injunction  were  dissolved;  or  where  the 
relief  prayed  for  is  based  upon  alleged  fraud,  and  the  court, 
after  considering  the  bill  and  answer,  is  not  satisfied  that  equity 
demands  a  dissolution  of  the  writ;  or  where  it  is  clearly  shown 
that  the  complainant  w^ould  lose  all  benefit  which  would  accrue 
to  him  should  he  finally  succeed  in  the  cause;  or  where  the 
court  is  not  satisfied  with  the  answer  of  the  defendant  and 
there  still  remain  questions  of  doubt  on  which  further  proof  is 
required  in  order  to  decide  the  rights  of  the  parties.  And 
generally  it  may  be  said  that  if  it  appears  to  the  court  that, 

1  Chesapeake,  etc.  Ry.  Co.  v.  Patten,  5  W.  Va.  234;  Beauchamp  v.  Super- 
visors, 45  111.  !i74;;  Crawford  v.  Paiue,  19  Iowa,  172. 


§  406.] 


INJUNCTIONS. 


617 


admitting  defendant's  answer  to  be  true,  irreparable  injury 
might  be  the  result  of  a  dissolution  of  the  injunction,  if  the 
rights  of  the  defendant  are  not  prejudiced  or  imperiled  by  con- 
tinumg  the  injunction,  the  motion  to  dissolve  will  not  be  al- 
lowed.i     It  has  been  said,  however,  that  an  injunction  will  be 


1  New  V.  Bame,  10  Paige  Ch.  (N.  Y.) 
502.  In  Attorney-General  v.  Oakland 
County  Bank,  Walk.  Ch.  (Mich.)  90, 
93,  the  chimcelior  said :  "  The  general 
rule  is  to  dissolve  an  injunction  when 
the  equity  of  the  bill  is  met,  and 
fully  and  clearly  denied  by  the  an- 
swer. The  answer,  however,  must 
be  positive,  and  not  upon  information 
and  belief,  and  must  be  full  and  satis- 
factory to  the  court;  otherwise  the 
injunction  will  not  be  dissolved,  but 
will  be  retained  until  the  final  hear- 
ing of  the  cause.  The  granting  and 
continuing  of  injunctions  rest  in  the 
discretion  of  the  court,  and  there  are 
exceptions  to  the  general  rule  above 
stated.  If  there  would  be  very  great 
danger  of  the  complainant's  losing 
all  the  bene.*its  of  his  suit,  by  a  dis- 
solution oi  the  injunction,  should  he 
finally  succsed,  the  court  will  not  as 
a  matter  of  couise  dissolve  it  on  the 
coming  in  of  the  answer  denying  the 
equity  of  the  bill.  Nor  will  an  in- 
junction be  dissolved  on  the  answer 
of  the  defendant,  where  the  answer 
admits  the  equity  of  the  bill,  and 
sets  up  new  matter  as  a  defense." 
In  He  De  Godey  v.  Godey,  39  Cal.  157, 
166,  the  court  say:  "  We  do  not  think 
that  it  can  be  maintained  that  the 
general  rule,  that  when  an  answer 
denies  fully  the  equities  of  tlie  bill 
the  injunction  should  be  dissolved, 
is  one  of  universal  application,  or 
without  exception,  or  that  the  dis- 
solution of  the  injunction  must  follow 
the  filing  of  even  such  an  answer  by 
mere  legal  conclusion.  In  Poor  v. 
Carleton,  3  Sumner,  75,  Mr.  Justice 
Story,  after  a  review  of  the  autlioii- 
ties  on  this  point,  declares  that  he 
should  have  been  sorry  to  iiiid  that 


any  such  practice  had  been  estab- 
lished as  that  an  injunction  should, 
at  all  events,  be  dissolved  upon  a 
mere  denial  by  the  answer  of  the 
whole  merits  of  the  bill.  That  there 
are  many  cases  in  which  such  a  prac- 
tice would  be  most  mischievous  — 
nay,  might  be  the  cause  of  irrepa- 
rable mischief.  He  says  that  the 
question  of  dissolution,  after  the 
coming  in  of  the  answer,  is  one  ad- 
dressed to  the  sound  discretion  of 
the  court,  and  adds  that,  if  the  au- 
thorities, properly  considered,  should 
seem  to  establish  a  contrary  doc- 
trine, he  would  hesitate  to  follow 
them  in  a  mere  matter  of  practice 
subversive  of  the  very  ends  of  jus- 
tice." McCreery  v.  Brown,  42  Cal. 
457;  Robreclit  v.  Robrecht,  46  W.  Va. 
738,  34  S.  E.  801;  McEldowney  v. 
Lowther,  49  W.  Va.  348,  38  S.  E.  644. 
In  Wenzel  v.  Milbury,  93  Md.  427.  49 
Atl.  618,  the  court  ordered  that  the 
answer  should  be  taken  as  true  and 
the  injunction  dissolved.  Queen  City 
Stock  &  Grain  Co.  v.  Cunningham, 
128  Ala.  645,  29  Sa  583.  And  where 
exceptions  were  filed  to  an  answer 
and  the  exceptions  were  not  well 
taken,  held  that  the  injunction 
should  be  dissolved.  Sandusky  v. 
Faris,  49  W.  Va.  150,  38  S.  E.  563. 
But  where  the  continuance  of  a  tem- 
porary injunction  is  reasonably  nec- 
essary for  the  protection  of  the  rights 
of  the  parties,  or  either  of  them,  dur- 
ing the  pendency  of  the  litigation,  it 
will  not  be  dissolved  on  a  verified 
answer  denying  the  equities  in  the 
bill.  Milwaukee,  etc.  Co.  v.  Bradley. 
108  Wis.  467,  84  N.  W.  870.  And 
wliere  a  temporary  injunction  was 
allowed  on  the  filing  of  the  bill,  and 


618  INJUNCTIONS.  f§  406. 

dissolved  if  plaintiff  is  guilty  of  o:ross  and  inexcusable  delay  in 
bringing;  the  cause  to  a  hearing,  or  if  to  continue  the  injunction 
no  useful  purpose  would  be  subserved.^  Where  an  injunction 
is  clearU'-  an  abuse  of  discretion,  in  an  urgent  case  it  has  been 
held  that  it  may  be  dissolved  by  mandamus.  As,  "  where  a 
preliminary  injunction  operates  in  such  a  way  as  to  do  violence 
to  vested  rights  and  interests,  and  to  prevent  the  proper  au- 
thorities from  exercising  their  legal  functions,  it  is  such  an  in- 
vasion of  right  as  entitles  the  aggrieved  parties  to  a  prompt 
redress,  which  .  .  .  is  better  for  the  public  peace  and  order 
than  encouraging  an  open  disregard  for  the  legal  tribunals, 
where  it  can  be  avoided.  While  the  action  of  an  inferior  court, 
within  its  discretion,  is  to  be  reached  by  other  appellate  process, 
yet,  when  the  action  complained  of  is  beyond  any  proper  dis- 
cretionary power,  or  is  an  abuse  of  discretion  which  cannot  be 
justified  on  legal  principles,  this  court  may  and  will  interfere 
by  mandamus^  if  there  is  urgency  or  pressing  occasion  to  do  so."  ^ 

on  motion  to  dissolve  the  case  was  etc.   R.    Co.  v.    Circuit    Judge,    136 

fully  heard  on  bill,  answer  and  tes-  Mich.  246,  the  court  held  that  while 

timony,  and   it  appeared   that   tlie  it  is  undoubtedly  the  general  rule 

plaintiff  was  not  entitled  to  an  in-  that  the  court  will,  on  the  coming 

junction  and  could  obtain  relief  at  in  of  a  sworn  answer  fully  jneeting 

law,  the  defendant  was  held  to  be  the  equities  of  the  bill,  dissolve  a 

entitled  not  only  to  an  order  dissolv-  preliminary  injunction,  the  rule  is 

ing  an  injunction,  but  also  a  decree  not  so  rigid  as  to   deny  any  discre- 

dismissing  the  bill.    Gulick  v.  Fisher,  tion  in  the  court  to  continue  the  in- 

92  Md.  353.     In  Ireland  v.  Kelly,  60  junction  until  the  hearing. 
N.  J.  Eq.  308,  313,  47  Atl.  51,  it  was        i  In  re  Schwarz,  14  Fed.  787;  Read 

held  that  a  motion  to  dissolve  the  v.  Consequa,  4  Wash.  (U.  S.  C.  C.)  174 ; 

preliminary   injunction    restraining  In  re  Jackson,  9  Fed.  493;  In  re  Pitts. 

a  suit  at  law  on  the  ground  that  the  9  Fed.  542. 

answer  denied  every  fact  on  which        2  Detroit  v.  Circuit  Judge,  79  Mich, 

complainant's  equity  depends   will  384,  386;  Port  Huron,  etc.  Ry.  Co.  v. 

not  be  granted,  because  the  answer  Circuit  Judge,  31  Mich.  456;  Tawas, 

simply  denied  the  existence  of  tlie  etc.  Ry.  Co.  v.  Circuit  Judge,  44  Mich, 

agreement  nnd  was  not.  responsive  479;    Maclean  v.   Circuit  Judge,  52 

to  complainant's  claim.     InCiiicago,  Mich.  257;  Barnum,  etc.  v.  Speed,  59 

Mich.  272. 


CHAPTER  XXI. 


REMEDIES  ESTABLISHING  PRIMARY  RIGHTS. 


§  407.  The  remedies  to  be  discussed. 


L  Actions  for  Assignment  op 
Dower. 

408.  History  and  development  of 

the  action. 

409,  The  procedura 


II.  Partition. 

410.  The  jurisdiction. 

411.  The  subject-matter  of  the  pro- 

cedure—  The  property. 

412.  Who  may  enforce  partition. 

413.  The  bill  of  complaint 

414.  Defenses  in  partition. 

415.  Default  of  defendant  and  pro- 

cedure. 

416.  The  hearing   and    decree  or 

order. 


IIL  Reforming  a  Contract,  Deed, 

or  Written  Obligation. 
§  417.  When  equity  will  take  juris- 
diction. 

418.  The  mistake  upon  which  the 

remedy  may  be  based. 

419.  The   procedure  — The   bill  ot 

complaint. 

420.  Defenses. 
481.  Proofs. 

IV.  Rescission,  Cancellation,  Sur- 
render or  Discharge  of  In- 
struments. 
423.  The  equitable  jurisdiction. 
423.  Some  cases  in  which  the  i-eni- 

edies  are  applicable. 
484.  The  procedure. 

425.  To  remove  cloud  from  title  — 

Nature  of  remedy. 

426.  Adequate  remedy  at  law. 

427.  Possession  by  plaintiff. 

428.  The  pleadings. 


§  407.  The  remedies  to  be  discussed.— The  third  class  of 
remedies  embrace  those  which  seek  to  establish  the  primary 
rights,  interests  and  estates,  legal  or  equitable,  of  the  plaintiff; 
rights  and  interests  which  really  exist,  but  have  not  been  de- 
clared or  established  by  a  decree  of  the  court;  as,  for  example, 
actions  for  the  assignment  of  dower,  where  the  right  of  dower 
exists,  but  has  never  been  declared  or  assigned  ;  actions  for  parti- 
tion of  property,  the  title  of  the  property  being  in  several  persons 
but  not  divided,  and  the  separate  titles  of  the  individuals  jointly 
interested  not  having  been  determined;  actions  for  reforming 
a  contract,  deed  or  written  obligation,  or  for  canceling  or  dis- 
charD-ino-  an  instrument.  It  will  be  noticed  that  the  actions 
classified  under  this  head  are  those  where  the  real  right  or 


620  REMEDIES    ESTABLISHING    PRIMARY    RIGHTS.  [§  40& 

interest  of  the  part}'  exists,  but  it  is  important  to  the  parties 
that  their  rights  should  be,  by  a  decree  of  the  court,  set  apart 
and  determined.  Some  of  the  more  important  remedies  of 
this  class  will  be  mentioned. 

I.  Actions  for  Assignment  of  Dower. 

§408.   History  and   development   of  the    action.  —  The 

dower  interest  of  a  widow  in  the  estate  of  her  deceased  hus- 
band is  a  legal  right  and  would  seem  to  belong  to  the  juris- 
diction of  the  law  court.  Formerly,  and  until  the  reign  of 
Elizabeth  in  England,  it  was  assigned  and  set  over  to  the 
widow  by  a  legal  procedure  instituted  for  the  particular  pur- 
pose of  obtaining  dower.  It  was  commenced  by  issuing  the 
writ  of  dower,  and  the  cause  was  determined  in  the  law  court. 
And  where  the  right  of  dower  had  been  determined  and  the 
particular  estate  to  which  the  widow  was  entitled  had  been 
set  off  by  metes  and  bounds,  the  action  of  ejectment  was  avail- 
able; but  because  of  complications  and  impediments  often 
arising,  the  aid  of  the  equity  court  was  frequently  invoked. 
And  the  jurisdiction  of  the  equity  court  always  embraced  ac- 
tions for  assignment  of  dower  where  it  was  necessary  to  assist 
the  widow  in  obtaining  her  rights  and  interests  in  the  estate 
by  way  of  discovery;  as  of  title  deeds,  where  the  registration 
laws  were  not  sufficient,  or  the  title  was  not  recorded;  or  for 
removing  impediments  to  the  rendering  of  her  legal  title  avail- 
able at  law.  The  proceedings,  however,  for  the  assignment 
of  the  widow's  dower  have  generally  throughout  the  states  of 
the  Union  been  given  by  statute  to  those  courts  having  juris- 
diction over  the  settlement  of  estates  of  deceased  persons,  and 
in  such  states  the  court  of  equity  will  not  assume  jurisdiction 
except  when  discovery  is  sought,  or  where  there  is  some  im- 
pediment to  be  removed  in  order  to  set  apart  and  assign  the 
dower  of  the  widow.  And  so  it  may  be  said  that  the  jurisdic- 
tion of  the  equity  court  is  a  concurrent  jurisdiction  with  the 
courts  of  law.  The  equity  court,  as  a  general  rule,  will  not 
take  general  jurisdiction  in  actions  for  the  assignment  of 
dower  where  there  appear  to  be  no  obstacles  to  the  legal 
remedy,  for  to  do  this  would  be  to  violate  that  general  rule 
which  obtains  in  equity  pleading:  that  where  there  is  a  com- 


§  408.]  REMEDIES    ESTABLISHING    PKIMARY    RIGHTS.  021 

plete  and  adequate  remedy  at  law  a  court  of  equity  will  not 
entertain  an  action.  Upon  this  question  there  has  been  con- 
siderable discussion  and  diversity  of  opinion;  but  it  would 
seem  that  the  rules  which  govern  the  jurisdiction  in  equity 
cases  necessarily  must  limit  the  jurisdiction  in  cases  of  dower 
to  that  chiss  of  cases  where  the  equitable  jurisdiction  must 
necessarily  be  invoked  because  there  is  no  complete  and  ade- 
quate remedy  at  law;  that  is  to  say,  the  equity  jurisdiction 
will  be  confined  to  cases  where  there  are  obstacles  in  the  way 
of  the  lethal  remedy ;  as  where  discovery  must  be  made,  or 
where  there  are  other  legal  impediments  which  do  or  may  pre- 
vent an  adequate  remedy  at  law.' 

In  Herbert  v.  Wren-  Chief  Justice  Marshall, in  rendering  the 
opinion  of  the  court,  said:  "According  to  the  practice  which 
prevails  generally  in  England,  courts  of  equity  and  courts  of 
law  exercise  a  concurrent  jurisdiction  in  assigning  dower. 
Many  reasons  exist  in  England  in  favor  of  this  jurisdiction; 
one  of  which  is,  that  partitions  are  made  and  accounts  aro 
taken  in  chancery  in  a  manner  highly  favorable  to  the  great 
purposes  of  justice." 

In  an  early  New  York  case  it  was  said,  in  discussing  the 
jurisdiction  of  the  equity  court,  that  "  it  was  a  question  of 
doubt  for  some  time  how  far  a  court  of  equity  would  take  ju- 
risdiction of  a  case  for  the  assignment  of  dower.  The  juris- 
diction of  the  court  of  chancery  in  England  had  long  been 
sustained  where  there  was  any  difficulty  in  the  way  of  the 
widow's  proceeding  at  law,  as  an  outstanding  term,  the  want 
of  information  as  to  the  title,  or  the  want  of  means  to  estab- 
lish the  title  of  the  husband  in  a  court  of  law,  in  consequence 
of  the  possession  of  the  deeds  by  the  heirs.  And  finally  it  was 
decided  that  a  demurrer  to  a  bill  for  dower  could  not  be  sus- 

1  In  Wright  v.  Wright,  79  Mich.  527,  frauded  or  improperly  persuaded 
the  widow  sought  to  have  her  dower  into  such  an  arrangement  by  any 
assigned  to  her  for  the  reason  tiiat  fraud  or  device  of  her  liusband,  she 
during  the  life-time  of  her  husband  is  entitled  to  full  and  adequate  re- 
he  had  induced  her,  for  a  very  inade-  dress;  and,  if  difficulties  are  raised 
quate  consideration  and  by  fraud u-  in  securing  it,  he  or  his  estate  —  in- 
lent  device,  to  relinquish  her  riglit  asinuch  as  his  heirs  or  devisees  can- 
of  dower.  The  court  in  that  case  not  be  regarded  as  howi  fide  pur- 
held  ■'  that  no  court  can  sustain  such  chasers  —  must  bear  the  risk." 
an  arrangement  unless  it  is  a  fair  -7  t'ranch  (U.  S.).  •>70;  Powell  v. 
and  voluntary  one.     If  a  wife  is  de-  Monson,  etc.  Co.,  3  Mason  (U.  S.),  ;^47. 


622  REMEDIES    ESTABLISHING    PRIMAET    EIGHTS.  [§  408. 

tained,  although  the  bill  did  not  contain  any  allegation  that 
there  was  an  impediment  to  the  complainant's  remedy  in  an 
action  at  law.  It  may  therefore  be  considered  as  settled  in 
England  that  the  court  of  chancery  has  concurrent  jurisdic- 
tion with  courts  of  law  in  suits  for  the  assignment  of  dower."  ^ 

In  Xew  Jersey  it  was  held  that  as  to  both  dower  and  parti- 
tion the  courts  of  law  and  equity  have  concurrent  jurisdic- 
tion.2  And  later  it  was  said  that  "dower,  when  founded  on  a 
legal  seizin,  is  a  pure  legal  right;  and  while  courts  of  equity 
possess  concurrent  jurisdiction  with  courts  of  law  for  its  en- 
forcement, yet,  in  cases  where  no  equitable  principle  is  in- 
volved, they  uniformly  treat  the  widow's  dower  as  a  strictly 
legal  right,  and,  in  dealing  with  it,  govern  themselves  by  the 
same  principles  which  control  courts  of  law."  '  This  seems  to 
be  the  doctrine  in  the  several  states  of  the  Union.* 

Formerly,  and  according  to  the  English  law,  dower  was  not 
allowed  in  equitable  estates,  but  the  general  doctrine  of  this 
country  and  of  England  has  been  changed  by  statute  so  that 
now  the  right  of  dower  is  generally  recognized  in  all  classes  of 
equitable  as  well  as  legal  estates.  And  where  the  dower  is 
sought  to  be  assigned  in  an  equitable  estate,  the  court  of  equity 
must  necessarily  have  jurisdiction  of  the  cause.' 

1  Badgley  v.  Bruce,  4  Paige  (N.  Y.),  dower  assigned   for  the   benefit   of 

98,  99;  Mundy  v.  Mundy,  2  Ves.  Jr.  creditors.     Seaman  v.    Seaman,  129 

122.  N.  C.   293,   40  S.  E.  41.     In  Rice  v. 

2Hartshorne  v.  Hartshorne,  2N.  J.  Waddill,  168  Mo.  99,  67  S.  W.  605,  a 

Eq.  349.  bill  was  filed  by  the  surviving  wife 

•»  Ocean  Beach  Ass'n  v.  Brinley,  34  for  the  accounting  of  moneys  alleged 

N.  J.  Eq.  438;  Hinchman  v.  Stiles,  9  to  have  been  given  by  the  husband 

N.  J.  Eq.  361.  to  his  children  for  the  alleged  fraud- 

4  Brown  v.  Bronson,  35  Mich.  415;  ulent  purpose  of  defeating  the  wife's 
Blair  v.  Thompson,  11  Grat  (Va.)  dower  rights,  and  for  the  purpose  of 
441;  Danforth  v.  Smith,  23  Vt.  247;  setting  aside,  as  fraudulent,  a  con- 
Thomas  v.  Thomas,  73  Iowa,  657;  veyance  of  real  estate  secretly  made 
Wall  &  Burnsides  v.  Hill,  7  Dana,  by  the  husband  to  his  children  on 
173;  Boltz  V.  Stolz,  41  Ohio  St.  540;  the  eve  of  his  marriage.  It  was  held 
Strong  V.  Clem,  12  Ind.  37.  In  Ten-  that  such  a  bill  stated  a  cause  for 
brook  V.  Jessup,  60  N.  J.  Eq.  234,  46  equitable  relief. 

Atl.  5-26,  it  was  held  that  the  plaint-  ^  In  Smiley  v.  Wright,  2  Ohio,  506, 

iff  might  file  a  bill  in  chancery  to  508,  the  court  said:  "It  is  a  peculiar 

determine    the  widow's  dower  for  feature  of  the  law  of  Ohio  that  the 

the  purpose  of  satisfying  an  execu-  widow  of  a  deceased  person  is  not 

tion.  and  that  in  such  case  the  court  only  entitled  to  dower  in  the  legal 

would   appoint  a  receiver  to  have  estate    of  which   the   husband  was 


§§  409,  410.]       REMEDIES    ESTABLISHING    PRIMARY    RIGHTS.  623 

§409.  The  procedure.— The  equitable  jurisdiction,  as  we 
have  seen,  is  generally  invoked  when  there  is  discovery  to  be 
made  or  impediments  to  be  removed,  and  so  the  bill  that  is 
filed  is  a  bill  for  other  relief  than  the  mere  assignment  of 
dower;  the  assignment  of  dower  being  ancillary  to  the  real 
case  made.  There  is,  therefore,  no  course  of  procedure  that 
especially  differs  from  the  usual  course  in  equitj''  cases.  The 
bill  is  filed  alleging  such  facts  as  make  out  a  case  which  entitles 
the  complainant  to  tiie  relief  prayed  for,  namely,  to  a  decree 
removing  all  impediments  and  assigning  the  dower  interest  to 
the  widow.  And  so  it  follows  that  the  defenses  to  the  pro- 
cedure are  the  same  as  defenses  to  the  ordinary  bill  in  equity; 
they  are  by  demurrer,  plea  or  answer,  as  the  case  demands. 

II.  Partition. 

§  410.  The  jurisdiction.— Partition  is  the  dividing  and  as- 
signing to  the  several  owners  thereof  their  respective  shares  in 
property.  It  has  been  said  that  the  proceeding  by  partition  in 
most,  if  not  in  all,  of  its  aspects  is  an  adversary  proceeding  in 
which  a  remedial  right  to  the  transfer  of  property  is  asserted, 
and  by  its  decree  determines  and  declares  a  new  title  to  the 
property  transferred  by  giving  a  distinct  and  separate  right  to 
the  several  parties  to  whom  the  decree  distributes  the  property.' 
Formerly,  the  jurisdiction  to  partition  property  was  exclu- 
sively in  the  law  court,  the  proceeding  being  instituted  by  a 
writ  of  partition,  but  latterly  that  proceeding  has  been  aban- 
doned and  partition  is  largely  controlled  by  statutes  and  the 
equity  courts  in  the  several  states. 

In  an  early  English  case  it  was  held  that  the  statutes  author- 
izing partition  are  often  ineffectual  and  the  jurisdiction  of 
equity  must  be  invoked  to  do  justice  between  the  parties.^  And 

seized,  during  coverture,  but  also  in  Reedetal.  v.  Whitney,  7 Gray  (Mass.), 

any  equitable  estate  which  he  may  533;  Hawley  v.  James,  5  Paige  (N. 

hold  in  lands  at  the  time  of  his  death.  Y.),  318;  Dubs  v.  Dubs,  31  Pa.  St.  151; 

It  is  in  virtue  of  the  statutory  pro-  Clapp    v.   Galloway,   56   Mich.   272; 

vision  endowing  the  widow  with  one-  Tiederaan  on  Real  Property,  sec.  117. 

third  part  of  all  the  right  or  interest  i  Robinson  v.   Fair,  128   U.  S.    53, 

the  husband  had  at  the  time  of  his  84. 

decease  in  any  lands  or  tenements  2  Agar  v.  Fairfax,  17  Ves.  Jr.  533, 

that  the  complainants  claim  dower  55'3;  Mundy  v.  Mundy,  2  Vea  Jr.  132 

in  the  premises  described  in  the  bill."  and  notes. 


624 


REMEDIES    ESTABLISHING    PKIMARY    RIGHTS. 


[§  410. 


the  United  States  courts  have  held  that  it  is  a  well  recognized 
branch  of  equity  jurisdiction.'  It  seems  that  the  courts  of 
equity  take  jurisdiction  for  the  purpose  of  getting  a  more  per- 
fect partition  or  allotment  of  the  property,  assigning  just 
shares  and  proportion  to  the  parties  as  they  are  entitled  to 
them,  and  to  this  end  have  power  to  decree  pecuniary  compen- 
sation to  one  or  more  of  the  parties  when  necessary  (called 
owelty)  so  as  to  prevent  injustice  or  unavoidable  inequality.* 
The  jurisdiction  and  procedure  in  partition  is,  however,  very 
largely  regulated  by  statutes  in  the  several  states;  in  some 
states  providing  that  the  proceedings  shall  be  governed  by 
rules  of  equity,  in  others  that  the  court  of  equity  must  con- 
form to  the  procedure  existing  in  courts  of  law.'  On  this  ac- 
count it  is  very  difficult  to  lay  down  any  general  rule  govern- 
ing the  jurisdiction  of  the  equity  court.  It  has  been  held, 
however,  that  the  court  of  equity  has  jurisdiction  in  cases  for 
partition  between  joint  owners  of  land,  notwithstanding  a 
remedy  at  law  is  given  by  statute.* 


iKlever  v.  Seawall.  65  Fed.  393, 
396;  Bank  v.  Dudley,  2  Pet.  (U.  S.) 
492,  524;  Donnor  v.  Quartermas,  90 
Ala  164. 

2  Story.  Eq.  Jur.,  sec.  654.  In  Dall 
V.  Confidence  Mining  Co.,  3  Nev.  5:^1, 
535,  93  Am.  Dec.  419,  it  was  said: 
'•Though  partition  had  its  origin  in 
the  ccmraon-law  courts,  it  is  a  sub- 
ject over  which  the  courts  of  equity 
assume  almost  exclusive  jurisdic- 
tion; and  in  disposing  of  the  cases 
for  partition,  the  equities  of  the  re- 
spective parties  growing  out  of  their 
ownership  of  the  property  as  tenants 
in  common  or  otherwise  are  taken 
into  consideration,  and  disposed  of 
upon  the  broad  principles  which  gov- 
ern those  courts  in  the  administia- 
tion  of  justice.  As  the  law  deems  it 
against  good  morals  to  compel  joint 
owners  to  hold  a  thing  in  common,  a 
decree  of  partition  may  always  be 
insisted  on  as  an  absolute  right.  It 
is  not  necessarily  founded  upon  any 
misconduct  of  the  co-tenants  or  part 
owners.    Hence,  in  decreeing  a  par- 


tition the  rights  and  equities  of  all 
the  parties  are  respected,  and  the 
partition  decreed  so  as  to  do  the 
least  possible  injury  to  the  several 
owners.'' 

^Metcalf  V.  Hoopingardner,  45 
Iowa,  510;  Hopidns  v.  Medley,  97 
111.  402.  In  Patton  v.  Wagner,  19  Ark. 
233,  it  was  held  that  "V.>e  staUite 
but  cumulates  the  remedy;  and  if, 
nevertheless,  a  party  should  elect  to 
seek  his  remedy  in  chancery  .  .  . 
he  is  entitled  to  such  as  the  chan- 
cellor can  afford  him."  In  New  York 
it  was  held  that  the  several  codes 
of  procedure  conferred  jurisdiction 
upon  parties  who  are  disseized. 
Weston  V.  Stoddard,  i:^7  N.  Y.  119. 

<  Thayer  v.  Lane.  Harr.  Ch.  (Mich.) 
247.  See  notes  in  following  section. 
Formerly,  and  at  common  1  iw,  the 
relation  of  joint  tenancy  and  in  com- 
mon being  held  to  be  a  voluntary 
relation,  it  was  held  that  it  couid 
only  be  dissolved  by  voluntary  parti- 
tion, but  when  the  relation  of  co- 
partners was  involved  in  the  owner- 


§  411.]  REMEDIES    ESTABLISHING    PRIMARY    RIGHTS.  625 

§  411.  The  subject-matter  of  the  prored sire  — The  prop- 
erty.—The  subject-matter  of  the  procedure  may  be  either  per- 
sonalty or  realty,*  and  the  court  is  also  often  asked  to  partition 
hinds  and  the  minerals  they  contain.     Considerable  discussion 
has  been  had  as  to  the  power  of  the  court  to  partition  minerals 
under  the  surface  of  the  soil.  And  where  the  action  was  to  parti- 
tion oil  and  gas,  it  was  held  that  the  judicial  partition  thereof  by 
assignment  of  the  oil  and  gas  under  sections  of  the  surface  was 
void.    The  court  in  its  opinion  said:  "The  decree  of  partition  in 
this  case  did  not  pretend  to  divide  the  solid  minerals  in  the  land, 
as  none  were  shown  to  exist;  and  such  a  partition  as  was  made 
would   be  inequitable  and  unjust  if  any  such  solid  minerals 
existed,  for  it  divided  the  land  into  twelve  narrow  strips,  and 
allotted  to  each  of  the  three  owners  several  of  these  strips  al- 
ternately, so  that  each  owner's  mineral  properties  were  divided 
into  several  distinct  strips,  separated  from  each  other  by  the 
strips  belonging  to  the  others.     This  would  destroy  the  value 
of  the  solid  minerals,  for  each  party  would  have  to  work  each 
tract  of  his  separated  minerals  separately,  instead  of  having 
them  in  one  compact  body.     This  decree  is  nothing  more  than 
a  decree  to  divide  the  carbon,  oil,  volatile  minerals,  gas  and 
gaseous  vapors  supposed  to  be  or  that  might  exist  under  the 
land  in  controversy  by  imaginary  lines  drawn  over  the  sur- 
face of  the  land.     Equity  is  natural  justice.     It  is  equality. 
It  never  does  a  vain  thing,  or  enforces  a  void  or  impossible 
contract.     Men  may  divide  the  moon  by  imaginary  iin-s,  but 

sliip  of  the  property,  the  reason  for  ciency  of  the  remedies  gave  rise  to 

tiie  rule  did  not  exist,  and  to  relieve  the  chancery  partition,  which   was 

the   difficulty  that   existed  in  such  assumed  by  the  chancery  court,  but 

casis,  and  in  the  time  of  Henry  tite  is    said    to    have    never    been    em- 

VIII.  the  inabi  ity  of  voluntariiy  sep-  powered  by  act  of  parliment.      Hall 

arating  the  interests  of  co-deieu(iants  v.  Piddock.  21  N.  J.   Kq.  ol4:  Story, 

was  relieved  by  statute,  which  em-  Eq.  Jur.  656c;  Gay  v.  Parpart,  106  U. 

powered   joint  tenants  and  tenants  S.  679.     It  is  now  settled  that  when 

in  common  to  compel  partition.  This  a  clear  legal  title  exists  the  claimant 

was  followed  by  other  statutes  which  is  entitled  as  a  matter  of  right  to  a 

broadened  and  made  more  general  partition.     Smith  v.  Smith.  10  Paige 

the  right  of  partition.    See  81  Henry  (N.  Y.),  473;  Willard  v.   Willard,  6 

VIII.  ch.  1.  and  32  Henry  Vlll,  ch.  32.  Mackey  (D.  C),  559. 

The    procedure    is   very   succinctly  i  Godfrey  v.  White.  60  Mich.  443; 

given  in  Freeman  on  Partition,  sec.  Campau  v.  Campau,  19  Mich.  116. 
422.      The    inadequacy    and    iueffi- 
40 


626  REMEDIES    ESTABLISHING    PRIMARY    RIGHTS.  [§  411 

equity  will  not  enforce  their  contract.  They  may  divide  the 
water  in  a  well  or  in  a  brook,  or  the  game  in  the  forest,  or  the 
fishes  in  the  sea,  but  equity  will  afford  them  no  such  relief. 
'Oil  and  natural  gas  are  minerals,  in  the  view  of  the  law;  but, 
because  of  their  peculiar  attributes,  they,  as  the  subject  of 
propertv,  differ  from  other  minerals.  Out  of  possession,  there 
is  no  propertv  in  them.  They  are  not  capable  of  distinct  own- 
ership in  place,  owing  to  their  liability  to  escape  from  the 
place  where  they  may  be  temporarily  confined,  without  neces- 
sarily any  interference  on  the  part  of  the  owner  of  the  soil,  or 
others  claiming  through  him,  under  whose  land  they  may  be 
found.  Like  water,  they  are  not  the  subject  of  propert}^  ex- 
cept in  actual  occupancy,  and  a  grant  of  them  passes  nothing 
for  which  ejectment  will  lie.  Oil  and  gas  cannot,  while  in  the 
ground,  like  the  solid  minerals,  be  the  subject  of  an  estate  dis- 
tinct from  that  in  the  soil.'  A  grant  to  the  oil  and  gas  passes 
nothing  for  which  ejectment  will  lie.  It  is  a  right,  not  to 
the  oil  in  the  ground,  but  to  the  oil  the  grantee  may  find."  ^ 

Generally  it  may  be  said  that  mining  property  may  be  par- 
titioned the  same  as  other  real  property,  even  though  the  fee 
of  the  land  is  still  in  the  general  government;  the  only  ques- 
tion being  as  to  how  the  partition  is  to  be  carried  out.  If  the 
mine  consists  of  beds  of  coal,  placer  mines  or  superficial  depos- 
its covering  a  considerable  tract  or  area  of  land  with  uniform- 
ity of  grade  and  deposit,  so  that  a  just  and  equitable  partition 
might  be  made,  no  doubt  partition  in  kind  might  be  made, 
but  properties  of  this  kind,  that  could  be  subjected  to  parti- 
tion in  kind,  would  be  rare.^  If  the  mine,  however,  consisted 
of  lodes  and  veins,  no  fair  division  could  be  made,  for  veins 
are  not  usually  evenly  distributed,  nor  have  they  uniformity 
as  to  quality  or  quantity.  The  veins  are  generally  irregular; 
sometimes  of  considerable  width,  at  other  times  pinching  to 
narrow  proportions;  sometimes  consisting  of  regular  veins,  at 
other  times  of  larger  ore  deposits,  pockets,  shoots  or  kidneys, 
with  here  and  there  faults,  slips  or  horses  of  country  rock  in 
the  vein,  so  that  it  would  be  impossible  to  make  partition  in 

1  Hall  V.  Vernon.  47  W.  Va.  295,  49    436;  Gill  v.  Weston,  110  Pa.  St.  312, 
L.  R  A.  464,465;  Williamson  v.  Jones,     1  Atl.  921. 

39  W.  Va.  231,  35  L.  R.  A. 222, 19 S.  K        2  Cecil  v.  Clark,  47  W.  Va.  402,  81 

Am.  St.  R  803,  35  S.  E.  U. 


§   411.]  REMEDIES    ESTABLISHING    PRIMARY    RIGHTS.  627 

kind.  In  such  case  a  decree  of  partition  might  be  obtained 
the  same  as  of  other  property.  But  following  the  general 
rule  of  procedure  in  partition  cases,  it  would  be  necessary  to 
allege  and  prove  that  a  partition  of  the  property  in  kind 
would  be  manifestly  injurious  to  the  interests  of  the  co-own- 
ers, and  that  a  sale  of  the  property  should  be  made  and  the 
proceeds  divided.  And  there  could  be  no  difficulty  in  con- 
vincing a  court  that  an  equitable  and  actual  partition  could 
only  be  made  by  such  sale  of  the  property  and  division  of  the 

nrocGtJcls. 

It  seems  to  be  a  general  rule  that  the  title  to  the  property 
must  be  in  the  parties  plaintiff  and  defendants  to  the  bill  of 
complaint,  and  that  the  court  will  not  entertain  a  bill  by  a 
stranger  to  the  title  for  partition.  It  has  been  held  that  an 
administrator  who  has  no  interest  in  the  property  except  a 
representative  interest  in  the  estate  which  he  is  appointed  to 
administer  cannot  sustain  partition.^  The  complainant  must 
have  an  actual  or  constructive  possession  of  the  property  to 
entitle  him  to  partition  where  the  title  is  a  legal  one.  But  it 
has  been  said  that:  "It  is  unnecessary  to  determine  whether 
the  question  of  the  right  to  maintain  such  a  bill  can  properly 

be  raised  upon  the  pleadings  alone,  as  one  strictly  of  jurisdic- 
tion, as   some  of  the  decisions  would  seem  to  indicate;    or 

whether  the  court,  notwithstanding  the  denial  of  complain- 
ants' title,  are  to  look  into  the  evidence  and  sustain  the  bill,  if 

the  complainants'  legal  title  is  so  clear  as  to  leave  no  serious 

question,  as  seems  to  be  inferable  from  some  of  the  cases. 
The  special  province  of  a  bill  for  partition  is  to  sever 

the  joint  possession,  so  that  each  may  enjoy  his  share  in  sever- 

1  Lenfers  v    Henke,  73  111.  405,  24  given  him  by  statute,  as  in  Indiana 

Am.   Rep    ^63;  Paul  v.  Cragnaz.  25  and  Utah."     Whitlock  v.  Willard,  18 

Nev    293    59    Pac.   857;     Aspen    v.  Fla.  166;  Foster  v.  Newton.  46  Miss. 

Rucker  28  Fed.  220;  Sears  v.  Taylor,  661;  Speer  v.  Speer,  14  N.  J.  Eq.  240; 

4  Colo.  38;  Freeman  on  Co-tenancy  Nason  v.  Willard,  2  Mass.  478;  Rich- 

and  Partition.  537.  ards  v.  Richards,  136  Mass.  126;  Tindal 

2Ryer  V.  Fletcher  Ryer  Co..  126  v.  Drake.  51   Ala.   578;    Campau   v. 

Cal  482  485,  where  it  was  said:  "It  Campau.   19  Mich.    116;  Beecher  t. 

is  we  believe,  universally  held  that  Beecher,  43  Conn.  560:  Throckmorton 

the  administrator  of  an  estate  has  v.  Pence.  121  Mo.  58;  Nelson  v  Ha.s- 

no  such  interest  in  the  land  as  en-  ley,  39  Fla.  145;  Garrison  v.  Cox,  99 

titles  him  to  institute  partition  pro-  N.  C.  47a 
ceedings  unless  power  is  expressly 


628 


REMEDIES    ESTABLISHING    TRIMARY    RIGHTS.  [§  411. 


alty,  and  not  to  try  legal  titles.  ...  If  the  title,  though 
of  a  legal  character,  be  undisputed,  or  perhaps,  though  denied, 
if  it  appear  to  be  so  clear  and  incontestable  as  to  admit  of  no 
reasonable  doubt,  and  the  court  can  see  that  a  trial  at  law 
would  be  a  mere  formality,  the  bill  will  be  maintained.  If  the 
title  be  an  equitable  one,  or  partly  equitable  and  partly  legal, 
the  court  of  equity  may  very  properly  try  the  titles,  and  so 
probably  when  the  title  is  of  a  purely  legal  character,  but  some 
obstacle  exists  to  a  fair  and  perfect  trial  at  law."  ^  But  it  is 
generally  held  that  if  the  complainant  is  in  actual  or  construct- 
ive possession  with  the  defendants,  and  his  title  or  his  co-ten- 
ancy is  denied  by  them,  the  title  may  properly  be  tried  under 
a  feigned  issue  awarded  by  the  court.  As  a  general  rule,  how- 
ever, it  must  appear  that  the  plaintiff  is  in  the  actual  or  con- 
structive possession,  unless  the  title  appears  to  be  very  clear. 
And  if  he  has  no  possession,  and  the  lands  are  adversely  held 
and  the  title  is  doubtful  or  suspicious,  the  bill  would  seem  to 
be  premature,  and  should  either  be  dismissed  or  the  proceed- 
ings under  it  stayed  till  the  complainant  has  an  opportunity 
to  establish  his  title  at  law.*    But  where  the  bill  was  filed 


1  Hoffman  v.  Beard,  22  Mich.  59,  62. 

2  Hoffman  v.  Beard,  22  Mich.  59,  62; 
Hemingway  v.  Griswold.  22  Mich.  77; 
Hooper  v.  De  Vries,  115  Mich.  231; 
Miller  v.  Miller.  100  Mich.  563.  In 
Campau  v,  Carapau,  19  Mich.  116,  it 
was  held  that  the  statutes  of  the 
state  which  subjected  the  lands  to 
the  payment  of  debts  in  case  the 
personalty  was  not  sufficient  did  not 
create  in  the  administrator,  before 
the  right  was  exercised,  an  interven- 
ing estate  which  would  deprive  the 
lieirs  of  a  partition  of  the  lands.  The 
heirs  in  sucli  case  are  entitled  to 
partition  before  the  settlement  of 
the  estate  or  the  payment  of  the 
debts,  tliough  the  law  requires  tliem 
to  have  an  estate  in  possession  to 
maintain  the  suit.  In  Fenton  v. 
Steere.  76  Mich.  405,  where  the  de- 
fendant pleaded  adverse  possession, 
and  where  it  appeared  from  the  evi- 
dence tliat  the  legal  title  was  doubt- 


ful, it  was  held  that  the  proceeding 
should  be  stayed  until  complainant 
established  his  title  at  law.  In 
Chanler  v.  Richardson,  65  Kan.  152, 
69  Pac.  168.  it  was  held  that  one  out 
of  possession  cannot  sustain  parti- 
tion against  one  in  possession  who 
claims  the  entire  title.  He  must  first 
establish  his  title  and  right  to  pos- 
session of  his  claimed  proportion  at 
law.  Where  lands  are  held  adversely 
the  remedy  is  first  in  ejectment;  to 
settle  the  title,  partition  will  not 
lie.  Head  v.  Phiilip.s.  70  Ark.  432,  68 
S.  W.  878.  Adverse  holding,  no  mat- 
ter how  short  a  time,  bars  partition. 
In  re  Wall's  Estate,  24  Pa.  Co.  Ct.  R. 
560;  Satterlee  v.  Kobbe,  72  N.  Y.  S. 
675;  Hanneman  v.  Richter,  62  N.  J. 
Eq.  365,  50  Atl.  904;  Bacon  v.  Fay,  36 
N.  J.  Eq.  411,  51  Atl.  797.  In  O'Brien 
V.  Ash,  169  Mo.  383.  69  S.  W.  8.  it  was 
held  that  the  fact  that  the  probate 
court  had  ordered  the  executor  to 


412.] 


REMEDIES    ESTABLISHING   PKIMAKY    RIGHTS. 


629 


praying  that  the  defendant  be  declared  a  trustee  of  the  title 
for  plaintiff  and  for  partition  of  the  lands,  it  was  held  that  the 
court  having  taken  jurisdiction  would  settle  the  whole  con- 
troversy, for  the  reason  that  a  court  of  equity  will  entertain  a 
bill  to  partition  an  equitable  estate  where  the  title  is  held  by 
defendant  and  the  equitable  interest  by  plaintiff,  although  the 
defendant  is  in  possession.^ 

§413.  Who  may  enforce  partition. —  It  appears  to  be  a 
universal  rule,  except  in  cases  where  it  is  changed  by  statute, 
that  partition  can  only  be  maintained  by  persons  in  possession, 
or  having  the  undisputed  right  to  the  possession  of  the  prop- 


take  possession  of  real  estate  which 
was  in  course  of  administration 
would  not  prevent  an  action  for 
partition.  But  in  Bender  v.  Terwil- 
liger.  168  N.  Y.  590.  59  N.  E.  1118, 
held  that  actual  possession  not  nec- 
essary. Morgan  v.  Mueller,  107  Wis. 
841,  8  J  N.  W.  313. 

1  James  v.  GroflF,  157  Mo.  407,  57 
S.  W.  1081.  In  Barr  v.  Lamaster,  48 
Neb.  114,  66  N.  W.  1110,  32  L.  R.  A. 
451,  where  adjoining  owners  of  lots 
erected  adjoining  buildings  tliereon, 
having  stairways,  hallways,  heating 
apparatus  and  skylights  in  common, 
and  easements  were  granted  to  the 
owners  of  the  buildings  each  to  the 
other  in  so  much  of  the  stairways, 
halls  and  skylights,  it  was  held  that 
the  easement  of  each  in  the  property 
of  the  other  is  owned  in  severalty, 
and  that  partition  of  the  lots  at  the 
suit  of  either  party  would  not  be 
authorized.  The  court  say:  "By 
virtue  of  the  agreements  under 
which  the  buildings  were  erected, 
each  party  to  this  controversy  has 
an  easement  in  so  much  of  the  halls 
and  skylight  as  is  situated  upon  the 
lot  of  the  other,  and,  in  the  language 
of  plaintiff's  counsel,  such  easements 
'are  in  no  way  inconsistent  with  en- 
tire several  ownership  of  the  two 
"buildings,  and  the  mere  existence  of 
cross-easements  does  not  authorize 
the  court  to  make  nartition.  because 


each  partj'  owns  his  easement  in  the 
property  of  the  other  in  severalty.' 
The  defendant,  it  is  shown,  granted 
to  the  plaintiff  the  easement  in  the 
hailways  and  skylight  voluntarily, 
and  for  a  valuable  consideration,  viz: 
the  grant  to  him  of  a  cross-easement 
therein.  Such  easement  is  real  prop- 
erty, an  incorporeal  hereditament, 
and  as  much  a  part  of  the  plaintiff's 
estate  as  the  building  itself.  The  de- 
fendant is  not  merely  prohibited 
from  interfering  with  the  access  of 
the  plaintiff  and  his  tenants  to  the 
building  of  the  latter  by  means  of 
the  common  hallways,  and  their  free 
enjoyment  of  the  common  skylight, 
but  equity  would  interfere  to  pre- 
vent tl.e  tearing  down  or  destroying 
by  him  of  hisown  building  duringthe 
existence  of  such  easement.  2  Story, 
Eq.  Jur.  (12th  ed.),  sec.  927;  Columbia 
College  V.  Lynch,  70  N.  Y.  440,  26  Am. 
Rep.  615;  Henry  v.  Koch,  80  Ky.  391, 
44  Am.  Rep.  484.  And,  should  he  suf- 
fer his  building  to  decay,  the  plaint- 
iff would  have  the  right  to  enter  for 
the  purpose  of  repairing,  in  order 
to  preserve  his  easement  therein. 
2  Washb.  Real  Prop.,  p.  79;  Washb. 
Easem.  654;  Prescott  v.  White,  21 
Pick.  (Mass.)  341,  32  Am.  Dea  266: 
McMillan  v.  Cronin,  75  N.  Y.  474." 
Bouham  v.  Weymouth,  39  Minn.  92. 
And  see  Welsh's  Appeal,  126  Pa.  St. 
297.  and  cases  cited- 


630 


KEMEDIES    ESTABLISHING    PRIMARY    BIGHTS. 


[§  412. 


erty.  If  one  claims  the  property  adversely  to  those  in  actual 
possession  there  could  be  no  common  or  joint  right,  and  the 
remedy  would  clearly  be  by  an  action  at  law  to  settle  the 
right  in  an  action  of  ejectment.  It  has  been  said  that  "  the 
substance  of  the  principle  is,  that  purely  legal  titles  are  to  be 
tried  at  law,  and  parties  are  entitled  to  have  them  so  tried 
where  they  can  have  a  ji^ry  trial  as  matter  of  right,  unless 
there  is  some  impediment  to  such  trial  which  requires  the  aid 
of  a  court  of  equity  to  remove."  ^ 

If  the  possession  is  constructive  or  actual  it  would  seem  to 
be  sufficient;  but  where  a  court  of  equity  has  obtained  juris- 
diction of  the  cause  upon  some  clear  equitable  ground  of  juris- 
diction, it  will  retain  the  cause  irrespective  of  the  question  of 
ouster  or  adverse  possession  and  do  complete  justice,  though 
it  may  involve  partitioning  the  property.  This  is  but  follow- 
ing out  the  theory  that  obtains  in  every  equity  cause:  the 
court  having  once  obtained  jurisdiction  will  retain  it  until  the 
whole  controversy  at  issue  between  the  parties  is  settled.^ 


1  Hoffman  v.  Beard,  32  Mich.  59,  67. 
The  learned  court  in  this  case  ob- 
served: "On  the  ground,  therefore, 
that  the  complainants  are  out  of  pos- 
session and  the  bill  and  evidence 
tend  to  show  an  ouster  and  disseizin, 
and  that  the  title  sliould  be  tried  and 


2  Rozier  v.  Griffith,  31  Mo.  171.  In 
Dameron  v.  Jameson,  71  Mo.  97,  100, 
the  court  said:  "When  the  plaintiff 
asks  for  partition,  and  the  defendant 
is  in  the  adverse  possession  of  the 
property,  the  courts  refuse  to  parti- 
tion the  land   between   them   until 


possession   gained    by  complainants    plaintiff  establishes  his  title,  and  a 


before  partition  should  be  granted, 
I  think  the  complainants  have  failed 
to  make  a  case  entitling  them  to  a 
partition.  I  find  no  American  case, 
where  the  proceeding  was  by  bill  for 
partition,  which  controverts  this  rule, 
though  some  dicta  may  be  found  to 
the  contrary.  The  rule  above  stated, 
as  the  result  of  the  American  au- 
thorities, was  first  laid  down  by 
Chancellor  Kentintheoase  of  Wilkin 
V.  Wilkin,  1  Johns.  Ch.  Ill,  as  the  re- 
sult of  the  English  authorities,  and 
substantially  the  same  rule  seems  to 
have  been  universally  followed  in 
this  country  where  the  proceeding 
was  by  bill  in  equity,  and  almost 
universally  where  it  has  been  by 
petition  under  statutes  of  the  various 
states." 


suit  in  ejectment  is  the  proper  pro- 
ceeding for  that  purpose;  but  where, 
as  here,  the  plaintiff  has  an  equitable 
title  and  asks  the  aid  of  the  court  of 
equity  to  establish  it.  if  the  court  as- 
certain that  he  has  an  interest,  and 
what  that  interest  is,  the  doctrine 
that  partition  cannot  be  had  when 
the  defendant  is  in  the  adverse  pos- 
session of  the  premises  does  not  apply. 
The  decree  establishesplaintiff'stitle, 
and  under  it  the  court  may  put  him 
in  possession  and  a  suit  in  ejectment 
becomes  necessary.  The  court,  hav- 
ing acquired  jurisdiction  of  the  cause, 
may  proceed  to  determine  the  whole 
controversy  by  decreeing  a  partition 
of  the  premises."  Gage  v.  Reid,  104 
111.  509;  Hillens  v.  Brinsfield,  108  Ala. 
605. 


§413.]  REMEDIES    ESTABLISHING    PRIMARY    RIGHTS.  C31 

§413    The  bill  of  complaint,— The  bill  of  complaint  in 
partition  must  follow  the  general  rules  of  pleading  which  ob- 
tain in  drawing  bills  in  equity,  the  most  important  of  which 
is  that  the  bill  must  upon  its  face  make  out  a  case  of  equitable 
iurisdiction  containing  all  the  requisites  necessary  to  the  de- 
cree prayed  for.     One  or  more  of  the  co-owners  of  the  property 
may  join  in  the  bill  if  they  desire  to  do  so,  or  any  one  of  them 
may  file  a  bill  making  all  the  others  defendants,  but  if  the  bill 
is  filed  on  behalf  of  others,  the  complainant  must  allege  in  the 
bill  in   what  capacity   he   brings  the  action.     The  property 
Avhich  is  the  subject-matter  of  the  controversy  must  be  cor- 
rectly described,  and  the  interest  of  each  of  the  parties  therein 
set  forth  with  sufficient  particularity  to  enable  the  court,  by 
its  decree,  to  set  off  the  share  of  each,  that  the  defendants  in 
the  cause  may  have  notice  of  the  claim  made  by  the  complain- 
ant- for  it  is  a  rule  "that  the  relief  given  must  be  consistent 
with  the  case  made  by  the  bill.">     If  the  property  be  of  such 
a  nature  that  it  cannot  be  partitioned  in  kind,  it  should  be  so 
alleo-ed  in  the  bill  of  complaint,  and  the  reasons  why  it  cannot 
be  so  divided  should  be  set  forth,  for  this  may  become  a  very 
important  issue  in  the  trial  of  the  cause,^  as  the  only  decree 
for  partition,  if  the  court  should  so  find,  would  be  a  sale  of 
the  property  and  a  division  of  the  proceeds.     And  it  has  been 
held  that  "  a  sale  for  partition  is  a  matter  of  right  provided  it 
shall  appear  to  the  court  that  the  property  cannot  be  equally 

iThayer  V.Lane,  Walk.  Ch,  (Mich.)    the  allegations  of  the  bill  were  as 
OQQ  O05  follows:  "And  your  orators  furtlier 

'^  2  But 'it  has  been  held  that  the  tea-    show  that  the  said  real  estate  is  not 
sons   why   the  property  cannot   be    susceptible  of  division  and  cannot  he 
partitioned    in    kind    need    not   be    divided   without  greatly  ^mpainng 
averred  with  great  particularity.    In    the  value  of  said  real  estate.      Earle 
Hayes  v.  McReynolds.   144  Mo.  348.     v.  Turton,  26  Md.  33.     In  Van  Cort- 
853  where  the  bill  was  demurred  to    landt  v.  Beekraan,  6  Paige  (N.Y), 
and  this  point  raised,  the  court  say:     492,  it  was  held  that  it  was  the  duty 
"The  petition  alleges  that  'said  real     of  the  complainant  to  state  m  his 
estate  is  not  susceptible  of  division     bill  the  rights  and  interests  of  all 
in  kind  without  destroying  its  value,'    the  parties  so  far  as  they  are  known 
and  the  averment  of  other  facts  why    to  him,  according  to  his  best  infor- 
it  could  not  be  partitioned  in  kind     mation  and  belief  if  not  positively 
was   unnecessary.      This  allegation    known.     Hai-mon  v  Kelley,  14  Ohio, 
was  sufficient  to  present  that  issue,     503;  Prichard  v.  Litt  ejohn^  128  111. 
and  if  defendants  desired  to  raise  it    123,  21  N.  E.  10;  Eberts  v.  Fisher,  44 
they  could  have  done  so  by  answer."    Mich.  5ol. 
Wilson  V.  Green,  63  Md.  547,  where 


632  REMEDIES    ESTABLISHING    PRIMAKY    RIGHTS.  [§  413. 

divided  amon;::  those  entitled  thereto,  or  that  it  would  be 
manifestly  for  their  interest  that  it  should  be  sold."* 

It  may  be  said  that  the  bill  for  partition  may  contain  more 
than  the  one  object  if  the  relief  sought  for  is  incident  to  the 
proceedings  and  for  the  obtaining  of  equitable  relief,  that  in 
equity  and  good  conscience  ought  to  be  granted  in  order  to 
settle  the  entire  controversy  between  the  parties.  As,  for  ex- 
ample, the  bill  would  not  be  considered  multifarious  if  it 
prayed  for  an  accounting  for  rents  and  profits,  or  the  specific 
performance  of  a  contract  which  relates  to  the  property  in 
question.  And  it  has  been  held  that  a  bill  for  partition  may 
ask  for  the  correction  of  the  deeds  of  conveyance  by  which  the 
lands  are  held  and  a  decree  for  specific  performance  of  con- 
tract for  the  conveyance  of  some  of  the  tracts  so  as  to  vest  the 
title  in  the  purchasers,  for  the  reason  that  they  are  incident  to 
the  proceedings,  and  the  parties  are  entitled  to  deeds  convey- 
ing the  legal  title,  so  that  when  partition  is  made  each  party 
shall  have  his  equitable  title  converted  into  a  legal  title.'  A 
bill  for  partition  may  also  pray  for  quieting  the  title  to  the 
property. 

It  has  been  held  that  "if  the  disputed  titles  are  equitable, 
courts  of  equity  will  exercise  jurisdiction  to  settle  them,  and 
will  then  grant  final  relief  by  way  of  partition  under  the  same 
bill.  Such  a  bill  is  not  multifarious,  because  the  partition  is 
decreed  incidentally,  to  complete  the  measure  of  relief  and 
avoid  multiplicity  of  suits.  Under  these  circumstances,  how- 
ever, the  bill  should  be  so  framed  as  to  disclose  its  real  object.'' 

The  bill  should  also  allege  that  the  plaintiff  will  suffer  in- 
jury if  partition  is  not  made  of  the  property,  except  in  cases 
where  the  parties  are  tenants  in  common,  for  in  such  case  they 
are  entitled  to  partition  as  matter  of  right.  The  prayer  of  the 
bill  should  conform  to  its  object.  If  the  property  is  divisible 
in  kind  it  usually  prays  that  it  may  be  partitioned,  setting  out 
to  each  of  the  parties  their  particular  part  or  share  to  which 
they  are  entitled  according  to  the  facts  alleged.     If  the  prop- 

•Ross  V.  Ramsey,  3  Head  (Ten n.),  also  contain  a  prayer  for  an  accouut- 

15,  17.  ing.     Davidson  v.  Thompson,  22  N. 

2Rann  v.  Rann,  95  111.  433,  438.    In  J.  Eq.  85;  Bridgford  v.  Barbour,  80 

Obert  V.  Obert,  10  N.  J.  Eq.  98.  it  was  Ky.  5'29. 
held  that  a  bill  for  partition  might        s  Hayes' Appeal,  123  Pa.  St.  110,133. 


§  414.]  REMEDIES    ESTABLISHING    PKIMARr    RIGHTS.  633 

crty  is  indivisible  in  kin.!,  then  the  bill  prays  that  it  may  be 
sold  and  the  proceeds  thereof  divided  among  the  parties  as 
each  is  equitably  entitled.     If  advancements  have  been  made, 
or  if  for  any   reason   either    of   the  parties  is  entitled  to  a 
greater  interest  because  of  improvements  or  advancements, 
the  prayer  of  the  bill  should  be  in  conformity  to  the  division 
or  shares  claimed  by  reason  of  advancements  or  improvements. 
And,  as  we  have  seen,  the  portion  of  the  property  upon  which 
said  improvements  are  made,  if  consistent  with  a  proper  divis- 
ion, is  often,  if  not  generally,  set  off  to  the  party  who  has 
made  the  improvement.     Usually,  however,  the  prayer  is  in 
the  alternative  for  a  partition  of  the  property  in  kind ;  or  if 
that  cannot  be  made,  that  it  be  sold  and  the  proceeds  divided. 
There  should  also  be  a  prayer  for  general  relief,  because  at  the 
hearing  the  court  may  find  it  necessary  to  make  a  somewhat 
different  decree  from  that  prayed  for  in  the  bill  of  complaint.^ 
§  414.  Defenses  in  partition.— Defenses  in  partition  cases 
and  the  manner  of  presenting  them  are  governed  by  the  general 
rules  applicable  to  defenses  in  equity.    If  the  complainant  fails 
to  state  a  case  which  will  support  the  prayer  of  the  bill  it  is 
subject  to  demurrer.*    But  it  has  been  held  that  mere  uncer- 
tainty in  the  description  of  the  premises  would  not  subject  the 
bill  to  a  demurrer-^"     And  so,  if  there  is  a  non-joinder  of  the 
defendants,  or  the  court  has  no  jurisdiction,  or  where  there  is 
a  special  statutory  defense,  or  where  the  defendant  holds  the 
property  adversely  to  the  plaintiff,  or  where  there  has  been  an 
ouster  ot  the  complainant,  or  the  plaintiff's  possession  or  right 
to  possession  is  denied,  or  if  any  fact  that  wi'l  support  a  plea 
in  equity  exists,  they  may  be  taken  advantage  of  by  plea  as 
in  any  other  equity  case.* 

The  defendant  may  answer  when  he  desires  to  deny  the  al- 

1  Claude  v.  Handy,  83  Md.  225,  34  «  Broad  v.  Broad.  40  CaL  493. 

AtL  533;  McKay  v.  McNeill,  6  Jones,  » Godfrey  v.  Godfrey,  17  Ind.  6. 

Eq    (N.  C.)  258.     Where  it  appears  4  German  v.  Machin,  6  Paige  (N.  Y.), 

that  a  division  of  the  estate  would  288;  Jenkins  v.  Van  Schaak,  3  Paige 

be     impracticable     the     complaint  (N.  Y.),  242.     In  Flagg  v.  Thurston, 

was  held  not  to  be  defective  where  11  Pick.  (Mass.)  431,  where  a  plea  in 

the  prayer  was  only  for  a  sale  and  bar  was  interposed  to  a  petition,  it 

division    of    proceeds.       Lorenz    v.  was  held  that  the  plea  was  bad  inas- 

Jacobs.  53  Cal.  24.     But  held  other-  much  as  it  did  not  show  any  title 

wise  in  Dyer  v.  Vinton,  10  R.  I.  517.  in  the  respondent. 


G34:  KEMEDIES    ESTABLISHING    PRIMARY    RIGHTS.       [§§  415,  416. 

legations  in  the  bill,  and  it  is  the  duty  of  the  defendant  to  set 
forth  fully  and  particularly  his  ri^^^hts  and  title  to  the  property 
in  question,  the  nature  and  extent  of  his  interest,  and,  if  he 
demands  an  allowance  for  improvements  or  for  rents  and  profits, 
he  must  make  the  several  claims  by  proper  allegations  in  his 
answer.!  The  answer  of  the  defendant  may  controvert  the 
interest  or  rights  or  title  of  the  co-defendants,  and  in  such  case 
a  cross-bill  might  be  filed.  The  defense  that  defendants  held 
by  adverse  title  or  possession  may  also  be  taken  advantage  of 
by  answer.  And  defendants  may  deny  the  joint  tenancy  or 
tenancy  in  common  of  the  parties  as  alleged  in  the  bill.- 

§  415.  Default  of  defendant  and  procedure.—  If  the  defend- 
ant fails  to  appear  and  demur,  plead  or  answer  to  the  bill  of 
complaint,  the  complainant  may,  upon  proper  showing,  enter 
his  default  and  proceed  to  a  decree  pro  confesso.  The  practice 
in  such  case  is  the  same  as  in  ordinary  equity  cases,  and  the 
decree  in  such  case  would  be  the  same  as  decree  where  defend- 
ant appears  and  defends;  either  dismissing  the  bill  or  ordering 
a  partition  of  the  property. 

§  416.  The  liearing  and  decree  or  order.—  The  cause  being 
at  issue,  or  upon  default  of  defendant,  is  brought  to  hearing 
the  same  as  any  other  chancery  cause.  If  an  answer  has  been 
filed  and  a  hearing  is  sought  upon  the  merits,  or  if  the  default 
of  the  defendant  has  been  entered,  proofs  must  be  adduced 
sufficient  to  make  out  2^. prima  facie  case  and  which  show  all 
the  requisites  to  a  partition  of  the  property  in  question.  If 
upon  the  hearing  the  court  shall  find  that  there  should  be  a 
partition  of  the  property  in  kind,  a  decree  will  be  entered  in 

iln  Morenhout  v.  Higuera,  32  Cal.  '-iMcArthur  v.  Clark,  86  Minn.  165, 
290,  295,  the  court  say:  "Whether  90  N.  W.  369;  Whitney  v.  Whitney, 
plaintiffs  or  defendants,  they  are  re-  171  N.  Y.  176,  63  N.  E.  834:  Hamilton 
quired  to  set  forth  fully  and  particu-  v.  McLean,  169  Ma  51,  68  S.  W.  9^0. 
larly  the  origin,  nature  and  extent  of  In  Illinois  it  was  held  that  a  home- 
their  respective  interests  in  the  prop-  stead  inherited  is  not  subject  to  par- 
erty.  This  having  been  done,  the  in-  tition  among  the  children  and  the 
terest  of  each,  or  all,  may  be  put  in  vridow.  Walker  v.  Walker.  195  111. 
issue  by  the  others;  and  if  so,  such  409,  63  N,  R  271.  And  where  lands 
issues  are  to  be  first  tried  and  deter-  are  claimed  by  another  and  held  ad- 
mined,  and  no  partition  can  be  made  versely,  partition  will  not  lie,  for  in 
until  the  respective  interests  of  all  such  case  there  is  a  legal  remedy  by 
the  parties  have  been  ascertained  ejectment.  Head  v.  Phillips,  70  Ark. 
and  settled  by  trial"  432,  68  S.  W.  87a 


§  416.]  BEMEDIES    ESTABLISHING    PRIMARY    BIGHTS.  635 

the  cause  appointing  commissioners  to  partition  the  property 
amoncT  the  parties  in  accordance  with  the  order  or  decree  of 
the  co^'urt;  the  decree  setting  out  particularly  the  manner  in 
which  the  partition  shall  be  made  and  the  shares  that  shall  be 
given  to  each  of  the  parties.     And  it  is  generally  held  that 
allowance  for  improvements  of  the  property  will  be  taken  into 
consideration  in  determining  the  just  shares,  whether  the  di- 
vision of  the  property  be  in   kind  or  the  proceeds  after  sale, 
and  that  rents  and  profits  as  well  as  betterments  and  improve- 
ments mav  be  considered.^     As  has  been  said,  the  decree  may 
order  portions  of  the  property  that  have  been  improved  to  be 
granted  to  the  party  or  parties  who  have  caused  or  made  such 
improvements,  allowing  them  for  the  improvements  claimed 
m  the  pleading  and  proven  at  the  hearing.     And  where  the 
property  cannot  justly  and  equitably  be  divided,  giving  to  the 
defendants  their  shares  in  kind,  the  court  will  by  its  decree 
allow  certain  of  the  defendants  to  take  a  larger  share  of  the 
property  in  kind  and  pay  over  to  other  defendants  a  sufficient 
amount  of  money  to  equalize  the  division  that  is  made.     This 
amount  of  money  thus  paid  or  ordered  is  called  owelty .^    The 
property,  if  partitioned  in  kind,  is  usually  divided  and  allot- 

1  Fenton   v    Miller,   116  Mich.  45:    well  as  for  his  own  benefit,  and  that 
Hunt  V  Hunt,  109  Mich.  399.  the  right  to  the  use  of  a  portion  ot 

2InSmith  V.Smith,  10  Paige  (N.Y.),  the  water  of  the  pond  might  be  given 
470  where  the  real  estate  of  which  to  one  of  the  parties  and  another  por- 
partition  was  sought  consisted  of  a  tion  to  another,  located  by  flumes  or 
mill-dam  and  the  lands  overflowed  gates,  and  other  divisions  were  sug- 
bv  the  pond,  that  which  constituted  gested;  the  whole  tenor  of  the  opin- 
the  water-power  necessary  for  the  ion  being  to  the  effect  that  the  div.s- 
use  of  several  mills  was  the  subject-  ion  should  be  equitably  made,  and 
matter  of  the  partition.  The  chan-  that  the  court  of  equity  has  author- 
cellor  in  his  opinion  discusses  the  ^^y  to  make  such  partition.  In  Mar- 
various  methods  of  making  partition  tin  v.  Martin,  95  Va.  26,  2.  S.  K  8  0 
of  such  property  and  analyzes  the  it  was  held  that  the  portions  might 
division,  citing  authorities.  In  the  be  equalized  by  charging  one  portion 
opinion  it  was  not  held  necessary  to  with  an  easement  in  favor  of  another 
divide  the  water  of  the  pond  by  hori-  portion.  Jameson  ^'-  ^i^^'^*  Va^ 
zontal  lines;  that  the  lands  under  342;  Fenton  v.  Miller,  116  Mich.  45.  a 
the  water  and  the  dam  might  be  di-  N.  W.  384;  Powell  J- Weathenngton. 
vided  by  metes  and  bounds, and  por-  124 N.  C.  40. 32S.  E.  380;  Finley  v  Cath- 
tions  given  to  each  party  subject  to  cart,  149  Ind.  470;  Updike  v.  Adams 
the  servitude  and  charge  of  keeping  (R.  I..  1902)^52  AtL  991;  Robinson  v. 
up  and  repairing  the  dam  on  the  part  Robinson  (R.  I.,  1902),  o2  Atl.  992. 
of  each  for  the  use  of  the  other  as 


636  REMEDIES    ESTABLISHING    PKIMABY    KIGHTB.  [§  416. 

ments  made  among  the  parties  by  commissioners  appointed  by 
the  court,  and  in  raakin*^  the  division  of  the  property  they  are 
generally  authorized  to  take  the  evidence  of  persons  familiar 
vrith  the  property,  if  it  is  necessary  to  do  so,  their  proceedings 
being  open,  not  secret,  the  witnesses  being  brought  in  by  sub- 
poena to  be  examined  in  the  matter.  The  witnesses  may  be  ex- 
amined on  interrogatories  if  so  directed  in  the  decree  and  com- 
mission. The  proofs  taken  before  the  commissioners  should 
be  fully  reported  to  the  court.^  If  it  appears  that  the  property 
is  not  equitably  divisible  in  kind,  that  fact  appearing  to  the 
court  upon  the  hearing,  and  proper  allegations  having  been 
made  in  the  pleading;  or  the  commissioners  appointed  to 
make  the  partition,  after  taking  proof,  having  so  reported  to 
the  court,  the  court  may  by  decree  order  a  sale  of  the  prop- 
erty' and  that  the  proceeds  of  the  sale  be  divided  between  the 
parties;  but  in  such  case  the  court  in  the  decree  ordering  sale 
should  determine  the  rights  and  interests  of  the  co-tenants  in 
the  lands.^  This  right  to  sell  the  property  and  divide  the  pro- 
ceeds is  largely  regulated  and  the  procedure  determined  by 
statutes  in  the  several  states.  But  it  has  been  held  that  the 
equity  court  has  this  right  because  of  its  inherent  powers.' 
In  some  of  the  states  the  course  of  practice  is  to  appoint  a 
commission  to  determine  the  necessity  or  advisability  of  a  sale 
of  the  property  and  report  its  findings  as  to  that  fact  to  the 
court;  but  in  most  jurisdictions  the  court  is  held  to  have  au- 
thority to  decree  a  sale  without  the  advice  of  a  commission. 
In  Thomjpson  v.  Hardman^  an  early  New  York  chancery 

1 2  Danl.  Ch.  PI.  &Pr.  1152-53.  (Pa.),    820;    De    War    v.    Spence,   2 

2Childers   v.    Loudin,  51    W,   Va.  Whart.  (Pa.)  211;  Patterson  v.  Blake, 

559,  42  S.  E.  637.    The  commissioners  12  Ind.  4:36. 

sit  and  determine  the  questions  as        ^  Beckham  v.  Duncan  fVa.,  1888), 

to  partition  judicially,  the  power  of  5  S.  E.  690;  Lake  v,  Jarrett,  12  Ind. 

the  court  for  this  reason  being  dele-  395;   Bragg   v.  Lyon,  93  N.  C.  151; 

gated    to    them.     Hills    v.    Dey,  14  Post  v.  Post,  65  Barb.  192;  McCall'a 

Wend.    (N.    Y.)   206;    Clarendon    v.  Appeal,  56  Pa.  St.  363;  Fight  v.  Holt, 

Hornby,   1    Peere  Wms.  446;    In  re  80  111.  84;  Baldwm  v.  Aldrich,  34  Vt. 

Thomson,  3  N.  J.  Eq.  637;  Hancock  526.  SO  Am.  Dec.  695;  Blakemore  v. 

V.  Craddock,  2  B.  Monroe  (Ky.).  389.  Blakemore,  39  La.  Ann.  804;  V^ilson 

The  commissioners  may  report  that  v.  Smith.  22  Grat.  (Va.)  502;  Johnson 

they  find  a  partition  of  the  property  v.  Olmsted,  49  Conn.  509;  Simpson  v. 

in    kind    impracticable    and    preju-  Simpson,  59  Mich.  71. 
diciaL     Wetherill  v.  Keim,  1  Watts        *  6  Johns.  Ch.  (N.  Y.)  4jG. 


§  416.]  REMEDIES    ESTABLISHING    PRIMARY    RIGHTS.  637 

case,  it  was  held  where  the  statute  provided  that  the  court  of 
law  'mi^ht  order  a  sale  when  the  commissioners  return  that 
partitio"n  cannot  be  made  without  prejudice,  that  the  chancery 
court  need  not  appoint  commissioners  to  advise  the  court  aa 
to  the  condition  of  the  property;  that  the  master  in  chancery 
is  the  ordinary  and  proper  officer  for  such  duties  and  could 
perform  that  trust,  but  that  commissioners  should  be  appointed 
to  make  the  sale  and  convey  the  property  to  the  purchaser. 
And  where  the  property  has  been  partitioned  or  sold  under 
the  decree  of  the  court,  the  court  having  made  an  interlocu- 
tory decree  appointing   commissioners  in    the   premises,    the 
commissioners  should  report  fully  to  the  court  their  entire  pro- 
ceedings, attaching  all  the  proofs,  if  any  are  taken,  to  their 
findings  for  confirmation.     Upon  the  coming  in  of  this  report 
if  any'of  the  parties  feel  aggrieved  by  reason  of  it,  or  the  pro- 
ceedings, they  may  move  to  set  it  aside,  or  to  amend  the  report, 
stating"  fully  their  reasons  therefor,  and  if  necessary  may  at- 
tach altidavits  sustaining  their  petition  or  motion.     Upon  this 
the  court  will  review  the  case  upon  the  hearing  of  the  motion 
to  confirm  the  report.     If  the  report  is  found  to  be  regular  and 
meets  the  judgment  and  opinion  of  the  court,  it  will  be  con- 
firmed by  a  final  decree  in  the  cause.     If  the  court,  however, 
determines  that  the  report  ought  not  to  be  confirmed  because 
of  some  irregularities  in  the  report  or  the  proceedings,  or  for 
the  reason  that  the  court  in  its  opinion  will  not  adopt   the 
judgment  of  the  commissioners,  it  will  set  aside  the  report  and 
may    appoint  other  coramissi.mers  to  determine  the  matters 
submitted.     In  such  case  the  report  of  the  commissioners  should 
describe  the  property  divided  and  the  shares  allotted  to  each 
party,  particularly,  and  if,  in  order  to  make  an  equal  division 
and  it  cannot  be  made  otherwise  the  report  should  specify  the 
compensation  to  be  paid  by  one  or  more  parties  to  another  for 
equality  of  partition,     This  report  is  filed  in  the  cause  with  the 
register  in  chancery.     The  final  decree  is  a  confirmation  of  the 
report  of  the  commissioners  and  the  partition  made  by  them, 
or  by  the  master  in  chancery,  and  the  manner  of  making  it,  and 
confirm  ng  the  shares  of  the  parties  to  the  property  in  question. 
Usually  the  decree  requires  the  parties  to  make  proper  deeds 
one  to  the  other  if  the  division  has  been  made  of  the  property, 
and  upon  retusal  the  decree  will  stand  as  the  evidence  of  title 


638  EEMEDIES    ESTABLISHING    PEIMAEY    EIGHTS.  [§  417. 

to  the  property  partitioned.  In  these  proceedings,  if  it  is  nec- 
essary to  do  so,  a  receiver  may  be  appointed  to  take  charge  of 
the  rents  and  profits  of  the  property,  and  such  other  matters 
as  may  be  incident  to  the  proceedings;  or  an  injunction  may 
be  issued  where  it  becomes  necessary  to  enjoin  any  of  the  par- 
ties to  the  cause.  The  practice  and  proceedings,  however,  are 
so  generally  provided  for  by  statutes  in  the  different  states 
that  it  will  be  necessary  to  always  consult  them.' 

III.  Kefoeming  a  Conteact,  Deed   oe  Written   Obligation. 

§417.  When  eqnity  will  take  jurisdiction.  —  A  court  of 
equity  will  assume  jurisdiction  to  reform  a  written  instrument, 
contract  or  obligation  when  it  clearly  appears  that  the  con- 
tract or  writing  does  not  express  the  intention  of  the  parties 
who  made  it,  either  because  of  mutual  mistake  in  that  it  does 
not  express  what  was  really  intended  by  the  parties,  or  where 
there  has  been  a  mistake  upon  the  part  of  one  of  the  parties 
and  fraud  upon  the  part  of  the  other  party,  if  in  the  latter 
case  it  appears  that  the  mistake  was  without  negligence.  The 
necessity  of  the  remedy  is  obvious.  A  court  of  law  may  enforce 
a  contract  as  it  is  written,  or  it  may  refuse  to  enforce  the  con- 
tract because  it  was  fraudulently  procured,  but  it  has  no  power 
to  reform  a  contract  so  that  it  will  express  the  intention  of 
the  parties  who  made  it;  and  when  the  alleged  contract  is 
thus  faulty,  the  enforcement  of  it  as  written  would  of  course  be 
unjust;  to  set  the  contract  aside  entirely,  and  not  reform  it, 
in  many  cases  would  be  equally  unjust  and  inequitable,  be- 
cause it  would  deprive  the  party  of  the  benefit  of  the  real 
contract  made.  It  therefore  follows  that  justice  and  equity 
demand  that  there  should  be  a  reforming  of  the  instrument  to 
the  extent  that  it  express  the  intention  of  the  parties.  There 
being  no  remedy  at  law,  equity  takes  jurisdiction,  and  the 
reformation  of  contracts,  deeds  and  written  obligations  is 
peculiarly  within  the  equitable  jurisdiction. 

In  Sawyer  v.  Hovey-  the  court  say:  "It  is  a  further  and 

i2Barb.  Ch.  Pr.,  sec.4,  ch.  9,  p.  292;  First  Nat.  Bank  v.  Brenneman,  114 

2  DanL  Ch.  Pr.  &  PI.  (4th  ed.)  1152,  Pa.  St.  315;  Nance  v.  Metcalf,  19  Mo. 

etc.  A  pp.   183;   Pomeroy's  Eq.   Jur.,  sec 

23  Allen  (Mass.),  331;  Page  v.  Hig-  1376;  Marsh  v.  McNair,  48  Hun   (N. 

gins,  150  Mass.  27,  5  L.  R  A.  152;  Y.),  117.     And  where  one  contracted 


§  418.]  REMEDIES    ESTABLISHING    PRIMARY    RIGHTS.  639 

very  material  rule  that  the  court  will  not  afford  its  aid  or 
allow  a  written  instrument  to  be  affected  by  parol  or  other 
extrinsic  evidence,  unless  the  mistake  is  made  out  according  to 
the  understanding  of  both  parties,  by  proof  that  is  entirely 
exact  and  satisfactory.  And  this  for  the  paramount  reason, 
that  otherwise,  if  a  deed  should  be  reformed  and  corrected 
upon  proof  of  the  mistake  of  one  of  the  parties,  the  great  in- 
justice might  be  done  of  imposing  upon  the  other  the  conse- 
quences of  a  contract  to  which  he  had  never  assented,  and 
therefore  wholly  against  his  will." 

§  418.  The  mistake  upon  which  the  remedy  may  be  based. 
It  is  not  every  mistake  that  will  sustain  a  bill  in  equity  for  a 
reformation  of  a  contract  or  instrument.  It  is  generally  held 
that  ignorance  of  the  law  with  knowledge  of  the  facts  cannot 
be  set  up  as  a  defense;  and  it  would  follow  that  a  mistake  as 
to  the  legal  effect  of  terms  used  in  a  contract  would  not  be 
sufficient  upon  which  to  base  a  bill  for  reforming  it.^  The  rea- 
son of  the  rule  is  that  such  a  mistake  would  be  easily  asserted 
and  very  difficult  to  disprove,  and,  if  it  were  allowed  to  obtain, 
the  grossest  imposition  and  the  greatest  fraud  might  be  prac- 
ticed. It  has  been  said  that  "  it  would  seem,  therefore,  to  be 
a  wise  principle  of  policy  that  ignorance  of  the  law,  with  knowl- 
edge of  the  fact,  cannot  generally  be  set  up  as  a  defense;  and 
it  appears  to  be  settled  by  a  course  of  equity  decisions  that 
ionorance  of  one's  legal  right  does  not  take  the  case  out  of  the 
rule,  when  the  circumstances  would,  otherwise,  create  an  equi- 
table bar  to  the  legal  title."  ^     But  ignorance  of  the  law  of  a 

to  sell  and  convey  premises  subject  the  insertion  of  it  was  a  fraud  upon 

to   mortgages,  the   deed   when  exe-  the   plaintiflf.     Kilmer   v.  Smith,  77 

cuted  to  the  plaintiff,  who  was  as-  N.  Y.  226;  Albany  City  Savings  Inst, 

signee  of  the  contract,  contained  a  v.  Burdick,  87  N.  Y.  40,  where  it  was 

clause  by  which  the   plaintiff  was  held  that  the  non-examination  of  a 

made  to  assume  and  agreed  to  pay  deed  was    not  such   negligence  as 

the  mortgages;    the  deed  was   ac-  took   from    the    party  the  right  to 

cepted  and  put  on  record  in  igno-  predicate  fraud   upon   the   transac- 

rance  of  the  fact  that  such  a  clause  tion;  Palmer  v.  Hartford,  etc  Co.,  54 

was  contained  in  it,  supposing  that  Conn.  488;  Ramsey  v.  Smith,  33  N.  J. 

tlie  deed  would  follow  the  contract;  Eq.  28. 

the  clause   being  inserted   without  i  Calverly  v.  Harper,  40  111.  App.  96. 

the  knowledge  or    consent  of    the  2  Storrs  v.  Barker.  6  Johns.  Ch.  (N. 

plaintiff,  the  court  held  that  equity  Y.)  166,  169;  Railway  Co.  v.  Soutter, 

would  reform  the  deed  by  striking  13  Wall.  (U.  S.)  517,  534.     The  rule 

out  the  clause  upon  the  ground  tliat  was  stated  by  Lord  EUenborough  in 


640 


KEMEDIE8    ESTABLISHING    PRIMARY    EIGHTS.  [§  41S. 


foreign  country,  or  of  a  foreign  state  in  the  United  States,  has 
been  held  sulhcient  to  aflPord  jurisdiction  to  the  court  of  equity 
to  reform  a  contract  where  the  error  was  the  result  of  such  a 
mistake.^ 

Mr.  Justice  Story,  in  discussing  the  rule,  after  an  examina- 
tion of  the  authorities,  concludes  that  the  rule  is  relaxed  where 
there  is  total  ignorance  of  title  founded  upon  a  mistake  of  plain 
and  settled  principles  of  law,  and  in  cases  of  imposition,  mis- 
representation, undue  influence,  misplaced  confidence  or  sur- 
prise, but  says  "it  may  be  safely  affirmed,  upon  the  highest 
authority,  as  a  well-established  doctrine,  that  a  mere  naked 
mistake  of  law,  unattended  with  any  such  special  circumstances 
as  have  been  above  suggested,  will  furnish  no  ground  for  the 
interposition  of  a  court  of  equity." '^ 


an  early  English  case.  Bilbie  v.  Lum- 
ley,  2  East,  469:  Atlantic,  etc.  Co.  v. 
Nelms  (Ga.,  1903).  rdS.  R  380;  Ather- 
ton  V.  Roclie,  192  111.  252,  61  N.  K  357, 
55  L.  R  A.  591. 

1  Haven  v.  Foster.  9 Pick.(Mass.)  112, 
129.  In  Revels  v.  Revels,  64  S.  C.  256, 42 
S.  E.  Ill, whereadeedvras executed  in 
conformity  to  an  understanding  be- 
tween the  motlier  and  her  son  that 
she  should  deed  the  property  to  hira, 
he  to  bind  himself  to  give  her  support 
for  her  natural  life,  and  the  consid- 
eration or  stipulation  to  support  the 
mother  was  not  inserted  in  the  deed, 
it  was  held  that  the  defendant  son 
should  execute  a  deed  containing 
the  consideration. 

2  1  Story,  Eq.  Jur..  sees.  137.  138. 
In  Si  belt  w  McAvoy,  15  111.  106,  109. 
the  court  .say:  "If  he  misconstrued 
the  contract  as  written  that  was  a 
mistake  of  law,  and  not  of  fact,  and 
for  such  mistakes  equity  can  grant 
no  relief.  It  is  where  parties  intended 
to  insert  words  in  a  contract  which 
were  by  accident  omitted  that  equity 
can  reform  the  contract  by  inserting 
them,  or  by  expunging  words  they 
did  not  intend  to  have  inserted.  If 
the  wurds  are  written  as  the  parties 
intended  they  should  be  written,  or 


supposed  they  were  written,  when 
thej'  signed  the  contract,  no  matter 
how  much  they  may  be  mistaken  as 
to  the  meaning  of  those  words,  no 
relief  can  be  granted,  either  at  law 
or  in  equity.  The  construction  of 
words  is  a  matter  of  law:  the  inser- 
tion of  words  is  a  matter  of  fact.  It 
is  for  mistakes  of  fact  alone  that 
contracts  may  be  reformed."  Gordere 
V.  Downing,  18  111.  492.  In  Goltra  v. 
Sanasack,  53  111.  456,  458,  the  court 
say:  "The  rule  is  inflexible  that  a 
mistake  or  misapprehension  of  the 
law  is  never  relieved  again.st  or  cor- 
rected. If  a  party  designs  to  and 
performs  an  act.  under  a  mistaken 
view  of  the  law  affecting  the  trans- 
action, he  is  held  to  the  obligation 
inc  urred.  As  a  matter  of  necessity, 
all  persons  are  presumed  to  know 
and  act  in  view  of  the  law,  and  the 
maxim  is  that  ignorance  of  the  law 
excuses  no  ona"  Purvines  v.  Har- 
rison, 151  111.  219.  223.  37  N.  E  705, 
706;  Seymour  v.  Bowles,  172  III.  521, 
524,  50  N.  E.  122,  123:  Butterfield  v. 
Sawyer.  187  111.  598,  602,  58  N.  E.  602, 
52  L.  R.  A.  75.  But  see  Abraham  v. 
Northern  Ins.  Co., 40  Fed.  717:  Canedy 
V.  Marcy,  13  Gray.  373;  Gillespie  v. 
Moon,  2  Johns.  Ch.  (N.  Y.)  596,  7  Am. 


§  418.]  EEMEDIES    ESTABLISHING    PRIMARY    RIGHTS. 


641 


If  the  mistake  is  a  mistake  as  to  the  facts  and  is  mutual, — 
and  the  contract  or  written  instrument  does  not  express  the 
real  contract  agreed  upon,  equity  will  reform  it.  And  if  the 
mistake  be  the  mistake  of  one  party  and  is  accompanied  by 
fraud  of  the  other  party,  equity  will  reform  it.  So  where  there 
was  a  mistake  of  the  draftsman,  by  which  some  of  the  terms  of 
the  agreement  were  omitted  in  drawing  it,  it  was  held  that  a 
decree  reforming  the  instrument  so  that  it  would  contain  the 
omissions,  and  to  specificall}'^  enforce  it,  should  be  made.^  It  is 
generally  conceded  that  courts  of  equity  have  a  wide  discre- 
tion in  this  class  of  cases,  where  the  object  is  to  give  to  the 
parties  the  benefit  of  the  real  contract  made  by  them.  But  if 
the  instrument  is  doubtful,  or  merely  conjectural,  the  court 
will  not  decree  that  there  is  a  mistake  in  the  instrument  and 
undertake  to  reform  it.^  Nor  will  the  court  of  equity  supply 
an  agreement  that  was  never  made.  It  will  onh'  reform 
agreements  where  to  reform  them  is  to  express  the  real  inten- 
tion of  the  parties.^    The  court,  however,  will  at  all  times  pro- 


Dec.  559;  Young  v.  Miller,  10  Ohio, 
85;  McNaughten  v.  Partridge,  11 
Ohio,  228,  88  Am.  Dec.  731;  Cooke  v. 
Husbands,  11  Md.  492. 

In  a  dissenting  opinion  in  Atherton 
V.  Roche,  above  cited,  the  judge 
draws  a  distinction  claimed  appli- 
cable to  this  rule.  He  says:  "  Decis 
ions  holding  to  the  contrary  are 
found, —  some  in  our  own  court;  but 
it  seems  clear  that  in  the  better  rea- 
son and  on  much  the  greater  weight 
of  authority,  it  must  be  said  that  in 
all  of  such  cases  the  adjudication 
proceeded  upon  an  erroneous  view 
as  to  the  true  meaning  of  the  well- 
established  rule  that  a  mistake  of 
law  cannot  be  relieved  asijainst, — 
that  IS,  that  parties  are  presumed 
to  contract  with  reference  to  the 
legal  principles  which  control  the 
subject-mutter  of  the  transaction, — 
and  that  su'-h  iei^al  princip  es  enter 
into  and  form  an  insepiirable  pnrtof 
their  contract,  and  it  is  not  within 
the  power  of  tlie  court  to  make  a 
new  contract  for  the  parties.  A  mis- 
41 


take  as  to  such  legal  principles  can- 
not be  corrected,  but  a  mistake  as 
to  the  legal  meaning  and  effect  of 
words  selected  by  the  parties  in 
drafting  written  instruments  to 
evidence  the  agreements  into  which 
they  have  entered,  though  mistakes 
of  law,  do  not  enter  into  and  become 
part  of  the  contract,  and  such  in- 
struments may  be  so  reformed  that 
they  will  declare  the  true  and  real 
aj^reement  or  undertaking  of  the 
parties."  Frazier  v.  Jeakins,  64  Kan. 
267,  67  Pac.  854;  Ackerman  v.  Beg- 
risch  (N.  J,  Eq.,  1901),  50  Atl.  673. 

1  Murphy  v.  Rooney.  45  Cal.  78. 

'•^  Williams  v.  Houston,  4  Jones  Eq. 
(N.  C.)  277. 

3  Graves  v.  Boston,  etc.  Co.,  2 
Cranch  (U.  S.),  419;  Batesville  Inst, 
v.  Kauffman.  18  Wall.  (U.  S.)  151; 
Morris  v.  Bacon.  123  Mass.  58;  Com- 
monwealth V.  Reading  Bank,  137 
Mas.s.  481.  443.  In  Vary  v.  Shea,  86 
Mich.  888,  it  was  held  that  the  evi- 
dence should  be  so  clear  as  to  estab- 
lish the  fact  beyond  cavil,  and  where 


CA-2  REMEDIES    ESTABLISHING    PKIMAKY    RIGHTS.  [§  410. 

tect  the  rights  of  bo7ia  fide  purchasers  or  persons  who  havo 
superior  equities.  To  do  otherwise  would  be  inequitable.  The 
court  will,  of  course,  take  into  consideration  all  of  the  circum- 
stances, and  if  there  is  sufficient  upon  the  face  of  the  trans- 
action to  apprise  a  reasonably  prudent  man  of  the  fact  that  an 
error  or  mutual  mistake  has  been  committed,  or  if  the  notice 
is  sufficient  to  put  such  a  person  upon  inquiry,  he  will  not  be 
protected.* 

§  419,  The  procedure  —  The  bill  of  complaint. —  The  pro- 
cedure is  by  bill  in  equity  pra^'ing  for  a  decree  of  the  court  to 
reform  the  instrument.  The  bill,  like  all  other  bills  in  chan- 
cery, must  be  directed  to  and  filed  in  the  court  having  jurisdic- 
tion of  the  cause,  and  must  contain  allegations  of  fact  sufficient 
to  entitle  the  complainant  to  the  relief  prayed,  that  the  court 
and  the  parties  may  have  a  full  understanding  of  the  contract 
complained  of.^  The  instrument  which  is  sought  to  be  reformed 
should  be  set  forth  in  the  bill,  so  that  from  it  and  the  allega- 
tions in  the  bill  of  complaint  it  may  clearly  appear  that  it 
does  not  conform  to  the  real  contract  made  bj'^  the  parties. 
The  bill  should  also  show  the  particular  mistake  or  the  fraud 

there  was  no  allegation  of  fraud  or  Pac.  215.  In  Savings  Bank  v.  Taylor, 
mistake  in  drafting  the  contract  76  N.  Y.  S.  790,  it  was  held  that  where 
equity  will  not  decree  the  addition  the  instrument,  because  of  a  mistake 
of  new  provisions  which  it  is  claimed  of  tlie  person  who  drew  it,  described 
were  not  embraced  in  it.  White  v.  a  larger  tract  of  land  than  was  in- 
Port  Huron,  etc.,  13  Mich.  356;  Reyn-  tended  by  the  parties,  reformation 
olds  V.  Campbell,  45  Mich.  529;  Bates  of  the  instrument  maybe  had  by 
V.  Bates,  56  Mich.  405.  The  complain-  the  seller  even  against  a  purchaser 
ant  seeking  to  correct  a  deed  must  for  value  and  in  good  faith,  in  the 
show,  among  other  things,  that  he  absence  of  any  conduct  on  his  part 
holds  under  it.  Balentine  v.  Clark,  calculated  to  mislead  the  vendee. 
38  Mich.  395;  Rowley  v.  Towsley.  53  Smith  v.  Smith,  134  N.  Y.  62,  31  N.  E. 
Mich.  329.  If  the  conveyance  was  258:  Albany  City,  etc  v.  Burdick, 
voluntary  it  cannot  be  corrected  87  N.  Y.  40,  46;  Curtis  v.  Albee,  167 
except  by  consent  of  all  the  parties,  N.  Y.  360,  364,  60  N.  E,  660;  Stines  v. 
Redding  v.  Rozell,  59  Mich.  476.  For  Hayes,  36  N.  J.  Eq.  369.  If  the  pur- 
reformation  by  mortgagee  see  Wen-  chaser  had  knowledge  of  the  mistake 
dell  V.  Crysler,  73  Mich.  427;  Kimble  reformation  will  be  allowed  as  to 
v.  Harrington,  91  Mich.  281,  51  N.  W.  him.  Memphis,  etc  Ass'n  v.  Wiegner, 
936.  But  see  Ford  v.  Daniels.  71  169  Mo.  201,  69  S.  W.  365;  Mississippi 
Mich.  77;  Shirley  v.  Rice,  79  Va.  442.  Valley,  etc.  Ca  v.  McDonald,  146  Mo. 
1  Quick  V.  Stuy vesant,  2  Paige  467,  48  S.  W.  48a  For  general  dis- 
(N.  Y.),  83,  92;  Carter  v.  Leonard  cussion  see  note,  Page  v.  Higgins,  5 
(Neb.,  1902),  91  N.  W.  574;  Deserefc  L.  R  A.  152. 
Nat  Bank  v.  Bunton  (Utah,  1898),  53        2  Leavitt  v.  Palmer,  3  N.  Y.  19,  38. 


§  420.]  KEMEDIES    ESTABLISHING    PRIMARY    RIGHTS.  643 

and  mistake  complained  of  and  how  it  occurred;  what  the  real 
contract  was;  how  it  differed  from  the  contract  that  was  ex- 
ecuted, and  the  injury  which  resulted  to  the  complainant  there- 
from. If  the  mistake  complained  of  is  the  result  of  fraud  on 
the  part  of  the  defendant,  the  facts  which  are  relied  upon  to 
make  out  the  fraud  must  be  fully  and  carefully  stated;  and  it 
must  clearly  appear  in  the  bill  of  complaint  that  the  mistake 
was  in  no  wise  the  result  of  the  negligence  of  the  complainant; 
and  if  fraud  is  charged,  that  the  complainant  relied  upon  the 
misrepresentations,  and  that  by  reason  of  them  he  was  induced 
to  execute  the  instrument.^ 

While  the  bill  is  for  the  purpose  of  instituting  a  direct  pro- 
ceeding for  the  reformation  of  the  contract  or  written  instru- 
ment, it  will  not  be  held  to  be  multifarious  if  it  has  the  further 
object  of  enforcing  the  contract  or  written  obligation  as  re- 
formed by  the  court.  As,  for  example,  a  bill  may  be  tiled  to 
reform  an  error  in  the  description  of  lands  in  a  mortgage  upon 
real  estate,  and  at  the  same  time,  by  making  necessary  allega- 
tions in  the  bill,  pray  for  the  foreclosure  of  the  mortgage  as 
reformed.  If  it  be  "a  contract  for  the  sale  of  property,  a  bill 
may  be  filed  to  reform  the  contract  and  to  specifically  enforce 
it;  that  is,  the  plaintiff  may,  in  a  bill  for  reformation  of  a  con- 
tract or  written  instrument,  ask  such  other  relief  as  is  consist- 
ent with  the  object  of  the  bill,  and  which  is  necessary  to  a  full 
and  complete  equitable  remedy.^ 

§  420.  Defenses.—  Defenses  to  a  bill  for  the  reformation  of 
a  written  instrument  are  not  dissimilar  to  defenses  in  equity 

1  For  discussion  of  complaint  and  »  Prater  v.  Bennett,  98  Ga.  4ia  In 
form  of  complaint,  see  Palmer  v.  Adams  v.  Wheeler,  122  Ind.  251,  254, 
Hartford  Ins.  Co.,  54  Conn.  488;  it  was  held  that  "  an  action  to  re- 
Tucker  V.  Madden,  44  Me.  206;  Breen  form  a  written  instrument  is  in  the 
V.  Donnelly,  74  CaL  301;  Grossbach  nature  of  an  action  for  the  specific 

V  Brown,  72  Wis.  458;  Gardner  v.  performance  of  a  contract,  and  ex- 
California,  etc.,  137  CaL  71,  60  Pac  cept  where  the  party  seeking  the 
844-  Satterfield  V.  Speir,  112  Ga  84,  reformation  is  a  mere  volunteer,  or 
37  S    K  211;  Center  Creek,  etc.  Co.  unless  the  principles  of  estoppel  for- 

V  Lindsay,  21  Utah,  193, 60  Pac.  559;  bid  it.  courts  of  equity  have  jurisdic- 
State  V.  Lorenz,  22  Wash.  289,  60  tion  to  reform  and  enforce  the  con- 
Pac.  644;  Kilgore  v.  Redmill,  121  tract  as  it  was  made  by  the  parties." 
Ala!  485,  *25  So?  766;  Koen  v.  Kerns,  Nicholson  v.  Tarpey,  89  CaL  617; 
47  W.  Va.  575.  35  S.  E.  902;  Penfield  Delaware,  etc  Ca  v.  Gillett,  54  Md. 
V.  Village,  etc.,  160  N.  Y.  697.  219. 


644  KEMEDIKS    ESTABLISHING    PKIMARV    RIGHTS.  [§  420. 

cases  generally.  They  are  by  demurrer,  plea  and  answer.  If 
upon  the  face  of  the  complaint,  admitting  all  the  well-pleaded 
allegations  to  be  true,  the  complainant  has  failed  to  make  out 
a  case  which  entitles  him  to  a  decree,  the  defendant  may  sus- 
tain a  demurrer  to  the  bill;  as  where  upon  the  face  of  the  bill 
it  appears  that  the  statute  of  limitations  has  run  against  the 
proceedings.*  Or  where  it  appears  upon  the  face  of  the  bill 
that  there  has  been  long  continued  laches  and  that  the  com- 
plainant has  negligently  failed  to  bring  his  action  within  a 
reasonable  time.'  Or  where  it  appears  upon  the  face  of  the 
bill  that  the  error  complained  of  is  one  that  equity  will  not  re- 
form; as,  for  example,  that  it  is  a  mistake  as  to  the  U'gal  effect 
of  the  contract;  or  that  it  is  such  a  mistake  that  if  it  were  re- 
formed the  reformation  would  be  entirely  futile.'  Or  where 
the  complaint  is  bad  for  uncertainty  in  that  it  fails  to  allege 
what  particular  property  or  lands  are  in  question.*  Where 
some  certain  defect  fatal  to  the  bill,  but  not  appearing  upon 
the  face  of  the  bill,  is  sought  to  be  used  as  a  defense,  it  should 
be  taken  advantage  of  by  plea.  And  as  is  usual  in  equity  cases, 
the  defendant  may  traverse  the  facts  set  forth  in  the  bill,  or 
set  up  matter  in  avoidance  of  them  by  answer;  as  that  the 
complainant  is  estopped;  that  the  action  is  barred  by  the  stat- 
ute of  limitations:  that  a  decree  would  be  futile;  that  the  al- 
leo-ations  in  the  bill  of  complaint,  that  the  contract  was  ob- 
tained  by  fraud  and  should  be  set  aside  as  void,  are  not  true; 
that  the  erroneous  contract  was  the  result  of  gross  negligence; 

1  In  Webb  v.  Webb,  23  Ky.  L.  Rep.  guideJ  by  them  as  setting  forth  the 
1057,  64  S.  W.  839.  the  statute  pro  true  contract  between  the  parties, 
vided  that  no  proceedings  to  correct  frame  a  decree  which  would  be  suffi- 
errors  could  be  taken  after  ten  years,  ciently  definite  and  certain  in  its  de- 

2  Elara  V.  Haden  (Ky.,  1897),  51  S.  scription  of  the  land  intended  to  be 
W.  455.  conveyed  to  identify  the  premises. 

3  Gardner  v.  Knight,  124  Ala.  273,  If  the  deed  were  executed  in  accord- 
27  So.  298.  ance  with  these  allegations  it  would 

*  Satterfield  V.  Speir,  112  Ga.  84.  88,  be  void  for   uncertainty  in   the  de- 

where  it  was  said:    "It  needs  no  ar-  scription  of  the  land."     And  in  this 

gument  to  demonstrate  tiiat  it  is  im-  case  it  was  also  held  that  the  fatal 

possible  to  derive  from  these  allega-  defect  of  uncertain  allegations  could 

tions  a  definite  description  of  any  not  be  cured  by  the  prayer  for  relief; 

particular  forty  acres  of  land.     No  that  the  court  could  not  make  a  new 

surveyor  could  take  them  and  guided  contract  for  the  parties  but  must  deal 

by  them  alone  lay  out  this  tract  of  with  the  contract  as  they  find  it. 
land.    No  court  could  take  them  and 


§§  421,  422.]       BEMEDIE8    ESTABLISHING    PRIMARY    RIGHTS.  645 

that  the  defendant  is  a  honajide  purchsiser,  or  any  other  reason 
or  facts  which  would  defeat  the  complainant.^ 

§  421.  Proof's.— The  burden  of  adducing  sufficient  proof  is 
upon  the  plaintifif,  and  it  is  generally  held  that  it  should  be  of 
greater  weight  than  a  mere  preponderance  of  evidence  where  it 
is  sought  to  reform  a  written  instrument.  The  presumption  is 
that  the  contract,  deed  or  written  instrument,  the  subject  of 
the  procedure,  is  valid,  and  in  all  respects  the  contract  of  the 
parties  as  it  purports  to  be;  the  plaintifif  by  this  procedure  seeks 
to  impeach  the  contract  and  this  presumption,  and  therefore 
the  courts  have  generally  held  that  the  proofs  must  be  clear 
and  at  least  beyond  a  rational  doubt.- 

In  a  recent  case  in  New  Jersey  it  was  said,  to  justify  a  ref- 
ormation upon  either  the  ground  of  mistake,  or  fraud  and 
mistake,  the  proofs  must  be  entirely  clear.  Either  mistake  or 
fraud  must  be  proven,  not  only  by  the  weight  of  evidence,  but 
beyond  a  rational  doubt.' 

IV.  Rescission,  Cancellation,   Surrender   or  Discharge  of 

Instruments. 

§422.  The  equitable  jurisdiction. —  Equity  takes  jurisdic- 
tion of  cases  for  rescission,  cancellation,  surrender  or  discharge 
of  instruments  because  there  is  no  adequate  remedy  at  law, 
common-law  courts  having  no  power  to  grant  the  rescission, 
cancellation,  surrender  or  discharge  of  an  instrument.  The 
jurisdiction  rests  fundamentally  upon  the  grounds  of  fraud, 

1  Bussey  V.  Moraga,  130  CaL  586,  63  571,  50  Atl.  692;  Green  v.  Stone,  54 

Pac.  1081.  N.  J.  Eq.  387,  396,  34  Atl.  1099,   55 

2Steinbach   v.   Hill,  25   Mich.  78;  Am.  St.  Rep.  577;  Sawyers  v.  Saw- 

Bellair  v.  Wool,  35  Mich,  440;  Jones  yers,  106  Tenn.  597.     In  Stroupe   v. 

V.   Disbrow,  Harr.  Ch.  (Mich.)    102;  Bridger  (Iowa,  1902).  90  N.  W.  704,  it 

Carroll  V.Rice,  Walk.  Ch. (Mich.) 373;  was  said  that  "to  justify  the  finding 

Matteson  v.  Morris,  40  Mich.  52;  Rit-  that  the  complainant  was  deceived 

ter  V.  Ritter,  42  Mich.  108;  Harris  v.  or  imposed  upon  in  the  transaction. 

Smith,  40  Mich.  453;  Thorn  v.  Thorn,  or  to  reform  a  deed  for  alleged  fraud 

51   Mich.  167;    Davis   v.  Phillips,  85  or  mistake,  requires  something  more 

Mich.  198,  48  N.  W.  513;  Finegan  v.  than  a  bare  preponderance  of  evi- 

Theisen, 92 Mich.  173;  Smith  V,  Cuddy,  dance."    Citing    Ciiapman   v.    Dun- 

96  Mich.  562;  Groesbeck  v.  Bennett,  well    (Iowa,    1902),   88  N.    W.    1007; 

109  Mich.  65;  Tiffany  v.  Tiffany,  110  Schriraper   v.    Chicago,   etc.    R.    Co. 

Mich.  219.  (Iowa,  1900),  82  N.  W.  916. 

3  Whelen  v.  Osgoodby,  62  N,  J.  Eq. 


€46  REMEDIES    ESTABLISHING    PRTMAKY   EI0HT8.  [§  422. 

accident  or  mistake, —  fraud  in  the  procurement  of  the  instru- 
ment, or  in  the  failure  of  the  consideration  whicli  it  is  claimed 
supports  it;  accident,  as  where  by  unseen  or  injurious  events, 
external  to  the  parties,  occurring  after  the  transaction,  but 
without  negligence,  mistake  or  misconduct  of  the  parties,  an 
undue  and  inequitable  advantage  is  obtained  by  one  of  the 
parties  to  the  instrument.  Where  by  mutual  mistake  of  the 
parties,  or  by  mistake  on  the  part  of  one  and  fraud  upon 
the  part  of  the  other  in  taking  advantage  of  the  mistake,  the 
instrument  is  executed  and  becomes  a  binding  obligation,  a 
court  of  equity  will,  in  an  action  for  that  purpose,  decree  that 
the  contract  may  be  rescinded,  canceled,  or  order  its  surrender 
or  discharge.  "While  these  actions  are  somewhat  different  in 
their  technical  meaning,  the  remedy  appropriate  in  the  several 
actions  may  be  sought  in  one  procedure  or  bill  of  complaint; 
in  other  words,  a  bill  would  not  be  considered  multifarious 
which  prayed  that  the  complainant  be  allowed  to  rescind  the 
contract  in  question,  that  a  decree  be  entered  declaring  the  con- 
tract canceled,  or  ordering  the  defendant  to  surrender  the 
same  to  the  complainant  or  discharge  it.  The  several  objects 
would  not  be  inconsistent  with  each  other.  Generally,  it  may 
be  said  that  the  complainant,  before  he  can  be  permitted  to  re- 
scind his  contract  on  the  ground  of  fraud  or  for  other  equitable 
reasons,  must  surrender  and  cause  a  complete  restoration  of 
the  subject-matter  of  the  controversy  to  the  defendant  in  the 
case;  that  is  to  say,  he  must  either  stand  upon  his  contract  as 
it  is  or  rescind  it  in  toto,  and  restore  or  tender  a  restoration  of 
all  he  has  received  thereon.  Some  exceptions  have  been  al- 
lowed to  this  rule,  however,  and  it  has  been  held  that  it  is  only 
necessary  to  show  by  the  bill  of  complaint  a  willingness  to  do 
equity.^ 

"Where  there  is  a  complete  and  adequate  remedy  at  law  the 
equity  court  will  not  assume  jurisdiction  and  decree  cancella- 
tion or  rescission  of  the  instrument.  But  it  has  been  held  that 
a  grantee  may  have  an  action  in  equity  to  compel  a  rescission 
of  a  contract  and  at  the  same  time  a  suit  at  law  to  recover  upon 
the  covenants  of  warranty  contained  in  the  deed,  where  it  was 
obtained  by  fraudulent  representations  upon  the  part  of  the 

1  Ludington  v.  Patton,  111  Wis.  208,  86  N.  W.  571;  Winter  v.  Kansas  City, 
eta  Rj.  Co.,  160  Mo.  154, 61 S.  W.  606. 


§  423.]  REMEDIES    ESTABLISHING    PRIMARY    RIGHTS.  C47 

vendor.  The  several  jurisdictions  and  the  importance  of  each 
is  emphasized  in  such  cases.  A  mere  recovery  upon  the  cove- 
nants of  warranty  would  not  be  entirely  adequate;  the  contract 
for  the  sale  of  the  land  should  be  rescinded  and  canceled.' 

§  423.  Some  cases  in  which  the  remedies  are  applicable. 
It  would  be  difficult  to  mention  all  of  the  cases  in  which  the 
remedies  by  rescission,  cancellation,  surrender  or  discharge  are 
applicable,  but  a  few  of  the  leading  examples  may  be  of  benefit. 
Equity  will  not  interfere  by  these  remedies  where  the  contract 
which  is  the  subject  of  the  proceeding  is  upon  its  face  abso- 
lutely void,  for  in  such  case  there  is  no  legal  presumption  of 
the  liability  of  the  parties,  and  the  court  will  not  assume  that 
parties  to  the  instrument  will  undertake  to  enforce  it.- 

The  remedy  may  be  invoked  where  certificates  of  stock  in 
an  incorporated  company  have  been  obtained  upon  the  faith 
of  a  forged  power  of  attorney;'  for  the  cancellation  of  an  in- 
strument obtained  from  one  who  is  non  co'm.pos  mentis  and 
totally  incapable  of  contracting,  the  instrument  being  obtained 
bv  false  and  fraudulent  representations;*  to  cancel  a  mortgage 
obtained  by  duress; **  to  cancel  an  insurance  policy  obtained 
through  fraud  and  misrepresentation;  to  remove  a  cloud  from 
title  by  canceling  fraudulent  mortgages  or  deeds  of  convey- 
ance. And  it  has  been  held  that  an  action  would  lie  for  the 
cancellation  of  a  promissory  note  obtained  by  fraud,  even 
though  non-negotiable,  for  the  reason  that  by  delay  the  evi- 

1  Perry  v.  Boyd,  126  Ala.  162,  28  So.  that  he  has  a  defense.  If  that  were 
711;  Lamprey  v.  Lamprey,  29  Minn,  sufficient  it  is  evident  that  every 
151,  12  N.  W.  514.  legal    controversy    arising    upon    a 

2  In  Town  of  Springport  v.  Savings  written  instrument  might  be  drawn 
Bank,  75  N.  Y.  397.  401,  the  court  say:  into  equity  by  any  party  who  appre- 
"The  party  seeking  such  relief  must  bended  that  an  action  at  law  might 
in  all  cases  show  in  limine  that  the  at  some  time  be  brought  against 
instrument  which  he  seeks  to  have  him."  Town  of  Venice  v.  Woodruff, 
canceled  creates  at  least  a  prima  62  N.  Y.  462;  PeirsoU  v.  Elliott.  6  Pet. 
facie  liability  against  him  or  incum-  (U.  S.)  95. 

brance  on  his  land,  which  he  must  s  Pennsylvania,  etc.  Co.  v.  Franklin 

overcome  by  extrinsic    proof,   and,  Ins.  Co.,  181  Pa.  St.  40,  37  L.  R  A.  780. 

when  the  instrument  does  not  affect  *  Boynton  v.  Reese,  112  Ga.  354,  37 

the  title  to  land,  he  must  also  show  S.  E.  437;  Clay  v.  Hammond,  199  111. 

some  special  ground  rendering  his  370,  65  N.  E.  352. 

defense  at  law  an  inadequate  protec-  »  Fry  v.  Piersol,  166  Ma  429,  66  S. 

tion.     It  is  not  sufficient  to  show  W.  171. 


6i8  REMEDIES    ESTABLISHING    PKIMARY    RIGHTS.       [§§  424,  425. 

dence  to  establish  a  defense  to  it  might  be  lost.*  It  must  ap- 
pear by  allegations  in  the  bill  of  complaint  and  by  the  proofs 
adduced  that  to  refuse  cancellation  or  discharge  of  the  instru- 
ment would  result  in  irreparable  injury  to  the  complainant.' 
But  where  the  parties  are  only  guilty  of  fraud,  a  court  of 
equity  will  not  decree  relief  to  either  party,  but  will  leave 
them  where  they  have  placed  themselves.' 

§  424.  The  procedure. —  The  procedure  in  this  class  of  cases 
is  by  bill  in  equity,  which,  following  the  general  rules  in  equity 
pleading,  must  by  its  allegations  make  out  a  case  cognizable 
by  the  court;  setting  up  the  fraud,  accident  or  mistake  upon 
which  the  proceeding  is  founded  with  such  certainty  as  is  re- 
quired by  the  rules  of  pleading.  If  fraud  is  relied  upon,  set- 
ting forth  fully  all  of  the  particulars  which  constitute  the  fraud, 
that  the  opposite  party  may  have  notice  of  the  facts  relied 
upon.  The  plaintiff,  in  order  to  sustain  his  action,  must  do  or 
offer  to  do  equity,  and  this  must  appear  in  the  bill  of  com- 
plaint.* This  is  upon  the  theory  that  the  instrument  ought 
never  to  have  been  made,  and  that  the  parties,  so  far  as  pos- 
sible, should  be  placed  in  the  same  situation  they  were  in  prior 
to  the  transaction.  For  this  reason,  too,  the  court  will  not  af- 
ford relief  where  the  complainant  has  been  guilty  of  laches 
and  the  coii<litions  are  so  changed  that  the  defendant  is  de- 
prived of  proof,  and  the  possibility  of  returning  the  property 
or  its  proceeds  does  not  exist.^  The  defenses  are  by  demurrer, 
plea  or  answer. 

§  425.  To  remove  cloud  from  title  —  Nature  of  remedy. 
An  action  to  remove  cloud  from  title  belongs  to  this  class  of 
remedies.  It  is  sometimes  called  a  bill  of  peace,  or  a  bill  to 
quiet  title.  A  cloud  ui)on  title  is  a  claim  of  some  title  or  in- 
cumbrance by  another  through  a  deed,  mortgage,  tax  deed  or 
evidence  of  title  which  is  apparently  valid  and  thus  affects  the 
title  of  the  owner  to  the  property  in  question;  something  that 
shows  2i  prima  facie  right  in  another  but  may  be  proven  to  be 

1  Merrit  v.  Ehrman,  116  Ala.  278,  22  2  County,  etc.  v.  Bridge  Co.  (Idaho, 

So.  514.     Where  the  fraud  was  mis-  1896),  47  Pac.  818,  36  L.  R  A.  367. 

representations  as  to  the  nature  and  3  Edgell  v.  Smith,  50  W.  Va.  349, 

value  of  the  consideration  made  by  40  S.  E.  402. 

one  occupying  a  fiduciary  relation.  *  Bell  v.  Felt,  102  111.  App.  218. 

Robinson  v.  Sharp,  201  IlL  86,  66  N,  *Lutjen  v.  Lutjen,  63  N.  J.  Eq.  391, 

E.  299.  53  Atl.  625. 


§  425.]  REMEDIES    ESTABLISHING    PlilMAKY    RIGHTS.  049 

invalid.^     Formerly  the  remedy  to  remove  a  cloud  from  title 
could  only  be  sustained  by  the  owner  of  the  property  in  pos- 
session; but  by  statute  in  the  different  states  the  jurisdiction 
has  been  enlarged  in  this  respect,  and  generally  it  is  allowable 
by  one  out  of  possession  to  bring  his  action  to  quiet  title  or  re- 
move a  cloud  from  it.     It  is  the  remedy  by  which  a  void  or 
pretended  title  may  be  set  aside  and  the  legal  title  cleared  of 
seeming  defects.      If  the  claimed   title   or  incumbrance  has 
no  semblance  of  legality -if  upon  its  face  it  is  clearly  and 
unquestionably  void  so  that  any  one  may  clearly  discern  that 
it  is  illegal  upon  inspection,  it  will  not  be  considered  a  cloud 
upon  the  title,  and  a  court  of  equity  will  not  entertain  a  bill 
to  remove  it.     There  must  be  an  apparently  good  title  in  de- 
fendant; a  prima  facie  defect  in  the  title  of  the  complainant.' 
But  the   danger  of  beclouding  the  title  must  be  more  than 


1  In  Lick  V,  Ray,  43  Cal.  83,  88,  it 
is  said:  "  It  is  settled  by  a  long  line 
of  decisions  in  this  court  that  if  the 
title  against  which  relief  is  prayed 
be  of  such  a  character  as  that,  if  as- 
serted by  action  and  put  in  evidence, 
it  would  drive  the  other  party  to  the 
production  of  his  own  title  in  order 
to  establish  a  defense,  it  constitutes 
a  cloud   which  the   latter   has  the 
right  to  call  upon  the  court  to  re- 
move and  dissipate.     If,  on  the  other 
hand,  the  title  be  void  on  its  face;  if 
it  be  a  nullity  —  a  mere  felo  de  se, 
when  produced,  so  that  an   action 
based  upon  it  will  'fall  of  its  own 
weight,'  as  has  been  said,  then  the 
title  of  the   party   plaintiff  is    not 
necessarily  clouded  thereby,  and  he 
ought,  if  he  would  maintain  an  ac 
tion  to  have  it  removed,  show  some 
special  circumstances  which  entitle 
him,  in  the  view  of  a  court  of  equity, 
to  a  decree  for  that  purpose."     Bis- 
sell  v.  Kellogg,  60  Barb.  617;  Sanxay 
V.  Hunger,  42  Ind.  44.     In  Chapman 
V,   City  of  Hartford,  21   Conn.  488, 
495,  the  court  say:  "And  it  is  true 
that  in  some  cases  courts  of  equity 
have  refused  to  interfere;  but  this, 
we  believe,  has  been  where  interfer- 


ence has  been  seen  to  be  entirely  un- 
necessary, and  the  application,  in  its 
tendency  or  purpose,  vexatious  and 
expensive,  as  where  the  instrument 
sought  to  be  delivered  up  and  can- 
celed was  connected  with  nothing 
else,  and  affected  nothing  else;  as  a 
note  or  bond  without  a   stamp,  or 
illegal  on  its  face,  and  thus  harm- 
less in  whatever  place  it  might  be." 
2  Detroit  v.  Martin,  34  Mich.  170, 
173.      In   Eaton   v.    Trowbridge,   38 
Mich.    454,   457,   it  was  said:    "The 
questions  involved  are  such  that,  if 
the  defense  at  law  should  succeed, 
the  title  of  complainant  of  record 
would  still  be  imperfect  and  open  to 
disputes;  and  where  that  is  the  case, 
it   is   manifest  that  the  remedy  at 
law  cannot  be  fully  adequate.     The 
purpose  of  this  suit  is  not  only  to  de- 
termine   the  title,  but    to    remove 
clouds  upon  it;  and  there  is  a  cloud 
so  long  as  by  the  record  it  is  at  least 
questionable  if  the  title  of  defend- 
ants is  not  prima  facie  better  than 
complainant's."    Briggs  v.  Johnson, 
71  Me.  265;   Griswold  v.  Fuller,  33 
Mich.  268;   Cohen;  v.  Sharp,  44  Cal. 
•2d;  Meloy  v.  Dougherty,  16  Wis.  287. 
As  to  cases  involving  tax  titles  see 


65C  REMEDIES    ESTABLISHING    PBIMARY    RIGHTS.  [§  420. 

mereij  speculative  to  sustain  an  action  to  quiet  title.*  It  has 
been  held  that  a  sale  upon  a  decree  or  judgment  which  is  void, 
or  a  foreclosure  on  an  illegal  mortgage,  will  be  enjoined  when 
it  is  necessary  to  prevent  such  sale,  upon  the  ground  that  a 
deed  upon  such  a  sale  or  such  foreclosure  would  be  a  cloud 
upon  the  legal  title.^ 

§426.  Adequate  remedy  at  law. —  If  there  is  a  complete 
and  adequate  remedy  at  law  the  complainant  cannot  sustain 
a  bill  to  quiet  title.  The  remedy  in  equity  to  remove  cloud 
from  title  is  not  for  the  purpose  of  establishing  title  in  the 
complainant,  but  rather  to  clear  the  title  he  has  from  unlawful 
or  illegal  incumbrance.  Indeed,  the  record  title  may  be  in  the 
defendant,  who  by  an  action  at  law  by  ejectment  is  seeking 
to  obtain  possession  from  the  complainant.  The  suit  at  law 
would  be  decided  in  favor  of  the  one  having  the  record  or 
legal  title  to  the  lands,  and  complainant  would  be  ousted 
although  he  has  an  equitable  title  which  is  in  the  particular 
case  paramount  to  the  legal  title. 

In  Dale  v.  Turner,^  where  complainant  sought  to  enjoin  the 
defendant  from  prosecuting  his  action  of  ejectment  based  upon 
a  title  derived  by  patent  from  the  state  for  the  reason  that  he, 
complainant,  held  a  title  based  upon  a  certificate  of  purchase 
from  the  United  States,  the  court  said,  after  discussing  several 
statutes : 

"Under  these  circumstances,  may  complainant  come  into 

C!ooley  on  Taxation,  543   and   cases  Allen,  85  111.  App.  23.  56  N.  E.  403; 

cited.     But   when  a  cloud  was  ere-  Rea  v.  Longstreet,  54  A  la,  291;  Bull's 

ated  by  a  void  assessment  and  the  de-  Appeal,  113  Pa.  St  510:  Phillips  v. 

feet  does  not  appear  upon  the  face  Pitts,  78  111.  72;  Townshend  v.  Will- 

of  the  record  and    could    only   be  lams,  5  N.  Y.  Super.  Ct.  394.    A  suit  to 

shown  by  evidence  aliunde  which  remove  cloud  will  be  upheld  when 

might  be  lost,  it  was  held  that  equity  the  claim  appears  to  be  valid  upon  the 

would  assume  jurisdiction.     Ogden  face  of  the  record,  and  the  defect  in 

V.  Armstrong,  168  U.  S.  224.      Tax  which  can  only  be  made  to  appear  by 

deed  as  cloud  upon   title.     Rich   v.  extrinsic  evidence.      Crooke  v.  An- 

Braxton,  158  U.  S.  375;  Gage  v.  Will-  drews.  40  N.  Y.  547. 
iams,  119  111.   563;   Miller  v.    Cook,        i  Torrent  v.  Booming  Co.,  22  Mich. 

135  111.  190,  10  L.  R,  A.  292;  Torrent  354;  Munson  v.  Munson,28  Conn.582; 

V.  Booming  Co.,  22  Mich.  354;  Davis  Farnham  v.  Campbell,  34  N.  Y.  480. 
V.  City  of  Boston,  129  Mass.  377;  Tait        2 George  v.   Nowlan,  38  Or.  537,  64 

v.  American,  etc.  Co..  132  Ala.  193,  31  Pac.  1. 

So.  623;  Kittles  v.  Williams,  64  S.  C.        3  34  Mich.  405,  417;  Pioneer  Land 

229,  41  S.  E.  975;  Post  v.  Campbell,  Co.  v.  Maddux,  109  CaL  633. 
110  Wis.  378,  85  N.  W.  1032;  Shaw  v 


651 


§426.]  BEMEDIES    ESTABLISHING    PRIMARY    RIGHTS. 

equity  to  assert  his  right  and  obtain  protection  against  the 
hostile  claim  of  the  defendants?     The  case  establishes  these 

propositions: 

''First.  That  complainant  holds  a  complete  equitable  title, 
and  which  antedates  the  origin  of  any  claim  by  defendants. 

"  Second.  That  actual  possession  under  such  title  is  in  him, 

and  was  so  when  defendant's  claim  arose,  and  has  so  remained. 

«  Third.  That  prior  to  this  suit,  and  at  its  commencement, 

the  defendants  set  up  a  claim  to  the  land  in  opposition  to  the 

title  claimed  by  complainant." 

A  decree  was  entered  perpetually  enjoining  the  ejectment 
suit  and  requiring  the  defendant  to  release  to  complainant  all 
claims  to  the  lands  depending  on  the  state  patent;  the  decree 
in  the  meantime  to  stand  in  the  place  of  such  release.     And 
where  an  injunction  was  sought  to  restrain  the  foreclosure  of 
a  trust  deed  which  was  barred  by  the  statute  of  limitations,  it 
was  claimed  that  the  owner  could  avail  himself  of  the  defense 
in  an  action  of  ejectment  brought  by  the  purchaser  at  the  trus- 
tee's sale ;  the  court  held  that  he  could  do  this,  but  that  it  would 
not  be  a  complete  answer  to  the  relief  asked.     "The  rehef  is 
demanded  on  the  ground  that  the  sale  will  cast  a  cloud  on  the 
plaintiff's  title.    The  jurisdiction  and  power  of  a  court  of  equity 
to  prevent  a  cloud  being  cast  upon  the  title  to  real  estate  is  a^^ 
well  established  as  is  the  jurisdiction  and  power  to  remove  one 
already  created.    .    .    .    Where  the  facts  are  such  that  a  court 
would  remove  the  cloud  when  cast,  it  seems  clear  the  court 
should  interfere  by  injunction  to  prevent  its  being  cast."  ^   The 
remedy  no  doubt  had  its  origin  in  the  inability  of  the  owner 
in  possession  to  try  the  illegality  of  the  claimed  title  or  incum- 
brance which  constituted  the  cloud.     He  in  possession  could 
not  bring  ejectment.     The  holder  of  the  title  constituting  the 
cloud  might  defer  bringing  an  action  in  ejectment  until  all  means 
of  defence  had  vanished  and  then  obtain  a  judgment;  because 
of  this  equity  assumed  jurisdiction  and  permitted  a  bill  to  be 
filed  to  remove  the  cloud  and  quiet  the  title.     This  remedy  is 

1  Gardner  v  Terry.  99  Mo.  523,  7  L.  land  is  unoccupied.  Grand  Rapids.etc. 

R.A  67  68-  Lorin-  V.  Hildieth,  170  R.  Co,  v.Sparrow.l  L.R.A.480;  Louns- 

Mas&  328    40  L.    R.    A.   127.     As  to  bury  v.  Purdy,  18  N.  Y.  515;  McP.ke 

United  States  court  taking  jurisdic-  v.  Penn,  51  Mo.  63;  Pettit  v.  Shei- 

tion  and  extending  it  to  cases  where  herd,  5  Paige  Ch.  (N.  Y.)  493. 


652  KEMEDIES    ESTABLISHING   PBIMARY    RIGHTS.  [§  427. 

not  given  to  parties  who  have  a  legal  and  adequate  remedy  at 
law. 

In  Stockton  v.  Williams^  it  was  said :  "  The  object  of  the  stat- 
ute seems  to  be  to  enable  a  person  in  possession  of  real  estate, 
and  having  a  title  thereto,  to  remove  all  doubts  in  regard  to  his 
title  arising  from  the  claims  of  third  persons,  who  are  taking 
no  steps  to  test  the  validity  of  their  claim,  either  at  law  or  in 
equity,  and  who,  by  their  refusal  or  neglect  to  institute  pro- 
ceedings for  that  purpose,  keep  the  party  in  possession  in  a 
state  of  suspense.  This  is  the  extent,  I  think,  to  which  this 
court  should  go  under  the  statute.  A  different  construction 
of  the  act  would  leave  it  optional  with  every  defendant  in 
ejectment  to  litigate  his  title  either  at  law  or  in  this  court,  and, 
by  filing  his  bill  here,  to  take  from  his  adversary  the  right  to 
have  the  facts  of  the  case  passed  upon  by  a  jury  of  the  country. 
Such,  therefore,  it  seems  to  me,  is  the  construction  that  should 
be  given  to  the  statute,  where  the  title  of  the  defendant  in 
ejectment  is  a  legal  and  not  an  equitable  title,  and  there  is 
nothing  to  prevent  his  establishing  it  as  fully  at  law  as  in  a 
court  of  equity.  But  the  defendants  come  too  late  with  their 
objection.  They  should  have  demurred  to  the  bill,  or  insisted 
on  the  want  of  jurisdiction  in  their  answer,  as  a  bar  to  the 
court's  takins:  coo^nizance  of  the  suit.  "Where  the  defendant 
instead  of  demurring  suV)mitsto  answer,  and  does  not  insist  on 
the  objection  in  his  answer  as  a  bar  to  the  jurisdiction  of  the 
court,  and  thereby  put  the  complainant  on  his  guard  as  to 
further  proceedings,  and  proofs  are  taken  in  the  cause,  it  is 
too  late  to  raise  the  objection  on  the  final  hearing." 

§  427.  Possession  by  plaintiff. —  Possession  of  the  lands  by 
the  plaintiff  was  formerly,  and  in  some  jurisdictions  is  now, 
a  jurisdictional  requisite  to  the  filing  of  a  bill  to  quiet  title. 
This  seems  to  rest  upon  the  theory  that  the  plaintiff  in  posses- 
sion can  maintain  no  action  at  law  to  test  his  title.  And  it 
has  been  said  that  "  the  holder  of  a  legal  title  not  in  actual 
possession  cannot,  as  a  general  rule,  maintain  a  bill  to  quiet  his 
title  and  to  compel  a  relinquishment  of  adverse  claims.  The 
reason  why  the  party  out  of  possession  cannot  maintain  such 
a  bill  is  that  he  may  bring  an  action  at  law  to  test  his  title, 

iWalk.  Ch.  (Mich.)  120,  126;  Stetson  v.  Cook,  39  Mich.  750,  755. 


§  428.J  REMEDIES    ESTABLISHING    PKIMAEY    KIGHT8. 


G53 


which  ordinarily  the  party  in  possession  cannot  do.  Such  a 
bill  is  only  entertained  by  a  court  of  equity  because  the  party 
is  not  in  a  position  to  force  the  holder,  or  one  claiming  to  de- 
fend under  the  adverse  title,  into  a  court  of  law  to  contest  its 
validity.  And  this,  as  a  general  rule,  is  the  test  to  which  a 
court  of  equity  will  look  to  determine  whether  the  necessity 
of  the  case  requires  its  interference."  ^  This  possession  must  be 
a  quiet,  peaceable  possession.  And  so  where  one  hns  been 
forcibly  ejected  from  the  premises,  his  bill  to  quiet  title  can- 
not be  defeated  upon  the  ground  that  he  is  not  in  possession 
or  that  he  has  an  adequate  remedy  at  law.  Nor  can  one  who 
has  taken  forcible  possession  sustain  his  action  to  quiet  title 
where  possession  is  a  necessary  requisite.^  But  where  the  land 
is  wild  and  unoccupied,  the  plaintiff  may  sustain  a  bill  to  quiet 
the  title  or  to  remove  a  cloud  from  it.'  But  in  many  of  the 
states  the  action  is  permitted  by  statute  to  be  brought  by  a 
person  either  in  or  out  of  possession.*  Whether  these  statutes 
are  binding  upon  the  federal  courts  is  not  entirely  settled  by 
the  authorities. 

§  4'-28.  The  pleadings. —  The  bill  of  complaint  must  set  out 
clearly  and  explicitly  the  title  of  the  plaintiff,  exhibiting  fully 
his  right  to  sustain  the  action.  If  in  a  state  where  possession 
by  the  plaintiff  is  a  jurisdictional  requisite,  then  his  peaceable 
and  quiet  possession  must  be  alleged.  It  is  not  necessary  to 
set  out  in  the  bill  the  deed  or  evidence  of  title  under  which 
the  plaintiff  claims,  nor  is  it  necessary  that  he  should  trace  his 
title  from  any  particular  source.  It  is  sufficient  to  allege  that 
he  is  the  owner  of  the  property  and  in  possession  of  it.  And 
in  states  where  he  is  permitted  to  file  a  bill  based  upon  equi- 
table title,  he  should  set  forth  fully  and  particularly  the  equi- 

1  Alton,  etc.  Ins.  Co.  v.  Buckmaster,  berry  v.  West  Virginia,  etc.  R.  Co.,  44 
13  III.  201,  -.Oo:  Smith  v.  McConnell,     W.  Va.  260. 

17  111.  Uo.  *  Hatch  v.  St.  Joseph,  68  Mich.  220. 

2  Bige  ovv  V.  Sandford,  98  Mich.  Permission  by  statute  to  bring  the 
657.  action  by  one  out  of  possession  ob- 

sjenkins  v.   Bacon,  30  Mich.  154;  tains    in    Arizona,    Arkansas.   Cali- 

Tabor  v.  (  ook.  15  Mich.  323;  Coieman  fornia,  Colorado,  Idaho,  Illinois,  Indi- 

V.  San  Kafael,  etc.   Co.,  49  Cal.  5l7;  ana,  lovva,  Michigan,  Minnesota,  \iis- 

Rol)ertson   v.   Wheeler.  162  111.  566;  sissippi,    Missouri,    Nebnska,   North 

Donoliue  v.  Ladd,   il  Minn.  244;  Hoi-  Carolina,     South     Carolina,     Texas, 

land  V.  Challen.  110  U.  S.  15;  Car-  Washington  and  Wisconsin. 


664  BEMEDIEB   ESTABLISHING    PEIMARY    EIGHTS.  [§  428. 

ties  upon  which  the  title  is  based,  that  the  court  may  determine 
its  sufficiency,  and  that  the  defendant  may  have  notice  of  the 
plaintiff's  claim.  The  claim  asserted  by  the  defendant  ad- 
verse to  the  plaintiff  must  also  be  set  out  particularly,  so  that 
it  may  be  determined  whether  it  is  a  claim  or  title  apparently 
good  upon  its  face,  or  such  a  claim  or  such  a  title  as  the  plaint- 
iff will  be  allowed  to  attack  in  a  court  of  equity.  The  prop- 
erty in  question  should  be  particularly  and  certainly  described 
so  that  it  can  be  identified.  The  injury  to  the  plaintiff  because 
of  defendant's  claim  and  the  cloud  upon  his  title  must  be 
stated  in  the  bill  of  complaint;  also  the  facts  which  show  that 
the  claim  of  the  defendant  constitutes  such  a  cloud.  The  bill 
generally  contains  an  allegation  or  averment  that  the  plaint- 
iff has  no  adequate  remedy  at  law,  but  this  is  not  necessary, 
as  the  stating  part  of  the  bill  should  show  that  fact.  There 
should  be  a  special  prayer  for  relief  that  the  cloud  upon  the 
plaintiff's  title  be  removed;  that  the  claimed  title  of  the  de- 
fendant be  adjudged  null  and  void.  The  bill  should  also  con- 
tain a  prayer  for  general  relief,  and  if  defendant  has  com- 
menced a  suit  at  law  based  upon  his  claimed  title,  complainant 
should  pray  for  and  obtain  a  temporary  writ  of  injunction 
enjoining  the  prosecution  of  such  legal  action,  which  he  should 
ask  be  made  perpetual  at  the  final  hearing.^ 

The  answer  of  the  defendant  may  traverse  all  the  material 
allegations  in  the  bill  of  complaint.     And  where  the  answer 

J  Stoddard  v.  Burge,  53  Cal.  394;  ruled  the  demurrer,  holding  that  the 

Smith   V.    Matthews,    81    Cal.    120;  grounds   were    untenable   and   that 

Stratton  v.  Land,  etc.  Co.,  86  Cal.  the  allegation  that  the  plaintifif  was 

353;  Ludlow  v.  Ludlow,  109  Ind.  199;  seized  in  fee  simple  was  a  sufficient 

Carger  v.  Fee,  140  Ind.  572;  Crooke  allegation  that  he  has  the  possession 

V.  Andrews,  40  N.  Y.  547;  Parleys  as    well  as    the    title.    Herrick    v. 

Park,  etc.  Mining  Ca  v.  Kerr,  130  U.  Churchill,  35  Minn.  318;  Pittsburgh, 

a  256.    In  Gage  v.  Kaufman,  133  U.  etc.  Ry.  Ca  v.  O'Brien,  142  Ind.  218; 

S.  471,  472,  the  sufficiency  of  the  alle-  Minighoff  v.  Sayre,  41  N.  J.  Eq.  113. 

gations  in  the  bill  arose  upon  de-  As  to  alleging  equitable  titla    Gris- 

murrer  for  the  reason  that  it  did  not  som  v,  Moore,  106  Ind.  296.    It  should 

show  who  was  in  possession  of  the  be  alleged  that  the  defendant  asserts 

lands,  or  that  the  defendant  was  not  a  claim.  Cleland  v.  Casgrain,92  Mich, 

in  possession,  or  that  the   plaintiff  139;  Stockton  v.  Williams,  Walk.  Ch. 

had  not  an  adequate  remedy  at  law  (Mich.)  120;  Bisel  v.  Tucker,  121  Ind, 

because  the  plaintiff  did  not  offer  to  249;   Strump  v.  Reger,  92  Ind.  286; 

do  equity  and  to  repay  the  tax  paid  Sims  v.  Smith,  99  Ind.  469;  Club  v. 

by  the  defendant.     The  court  over-  Clough,  146  Ind.  93. 


§  428.]  KBMBDIK8    ESTABLISHINa    TKIMARY    RIOHTS.  655 

denied  that  the  plaintiff  was  at  any  time  the  owner  of  any 
right,  title  or  interest  in  or  to  the  premises,  or  any  part 
thereof,  and  alleged  that  certain  of  the  defendants  owned  and 
still  owned  the  legal  title  to  all  the  premises  under  certain 
trusts  which  were  not  described,  but  plaintiff  was  alleged  to 
have  no  connection  with  said  trusts  in  any  way,  it  was  held 
that  the  answer  was  sufficient.^  The  defendant  may  by  cross- 
bill allege  possession  in  himself  and  may  seek  to  establish  and 
quiet  his  own  title,  setting  forth  by  proper  and  necessary  alle- 
gations his  title  and  the  defects  in  the  plaintiff's  title,  which 
he  claims  is  a  cloud  upon  his  own,  and  thus  confer  jurisdiction 
upon  the  court  to  determine  the  question  of  title  between  the 
parties,  and  by  decree  to  grant  relief  to  the  one  entitled  to  the 
same;  although  the  fact  that  the  plaintiff  was  not  in  possession 
is  sufficient  to  defeat  the  jurisdiction  upon  the  original  bill.- 
And  if  the  cross-bill  or  petition  is  not  answered  the  default  of 
the  complainant  may  be  entered  and  the  cross-bill  taken  as 
confessed.' 

1  Butterfield  v.  Graves,  138  Cal.  155,        «  Sanders  v.  Village  of  Riverside, 
71  Pac.  510;    Hackworth  v.  Layne    118  Fed.  720. 

(Ky.,  1900),  56  S.  W.  817.  '  Messinger  v.  Peter,  139  Mich.  93, 

88  N.  W.  309. 


CHAPTER  XXII. 


REMEDIES  FOR  THE  ENFORCEMENT  OF  OBLIGATIONa 


L  Actions  for  the  Specific  Per- 
formance OF  Contracts. 

§  429,  Specific  performance. 

430.  Not  a  matter  of  absolute  right 

but  of  discretion. 

431.  Some  requisites  to  the  relief. 

432.  Tender  of  performance. 

433.  Tiie  procedure  —  The  parties. 

434.  The  bill  of  complaint. 

435.  Defenses. 

436.  The  decree. 

IL  Actions  for  the  Declaration 
and  Enforcement  of 
Trusts  and  Obligations 
Arising  from  Fiduciary 
Relations. 

437.  Trusts  —  Nature  of  and  defi- 

nition. 

438.  Creation    or    declaration    of 

trust. 

439.  Equitable  remedies  —  Proced- 

ure. 

440.  Equity  will  follow  the  trust 

property. 

441.  Pleadings    and  procedure  in 

enforcement  of  trusts. 

442.  The  bill  of  complaint. 

443.  The  defense. 
444  The  decree. 


IIL  Contribution,  Exoneration 
and  Subrogation. 

§  445.  The    relation  and   nature  of 
the  several  remedies. 

446.  The  jurisdiction  of  equity  — 

Contribution  —Subrogation. 

447.  To  what  cases  subrogation  ap- 

plies. 

448.  A  mere  volunteer  not  entitled 

to  remedy. 

449.  One  guilty  of  fraud  or  negli- 

gence not  entitled  to  the  re- 
lief. 

450.  When  the  remedy  is  complete. 

451.  Pleadings  —  Procedure  —  Bill 

of  complaint 

452.  Defenses. 

IV.  Actions  for  the  Dissolution 

OF  Partnerships  and  for 
AN  Accounting. 

453.  The  equitable  jurisdiction  in 

partnership  cases. 

454.  Dissolution  of  a  partnership. 

455.  The  equitable  remedy. 

456.  Some  conclusions. 

457.  The    pleadings  —  The  bill    of 

complaint 

458.  The  defenses. 

V.  Actions  Where  Damages  Are 

Awarded. 

459.  As  an  equitable  remedy. 


I.  Actions  foe  the  Specific  Performance  of  Contracts. 

§  429.  Specific  performance. —  Where  a  valid  binding  con- 
tract has  been  infringed  and  the  remedy  afiForded  by  the  law 
courts  by  damages  is  inadequate,  the  coniphiinant  ma\'  seek  its 
enforcement  in  equity,  being  entitled  to  a  full  pertorraance  of 


I  429.]  SPECIFIC   PERFORMANCE.  657 

the  contract  according  to  its  terms.  The  jurisdiction  of  the 
court  in  this  class  of  cases  arises  primarily  in  the  right  of  the 
complainant  to  have  the  particular  thing  contracted  for,  where 
it  is  equitable  and  practicable,  and  of  such  a  nature  that  it  can 
be  enforced  in  specie,  such  enforcement  being  important  to  the 
plaintiff,  and  not  too  oppressive  to  the  defendant;  and  where 
damages  cannot  be  estimated,  or  if  they  could  be  estimated 
would  afford  inadequate  relief.  The  court  having  assumed  juris- 
diction will  apply  the  remedy  and  give  specific  relief  by  causing* 
that  to  be  actually  done  which  by  the  contract  is  agreed  to  be 
done,  so  far  at  least  as  is  equitable  and  in  accordance  with  good 
conscience.  When  a  contract  of  binding  force  upon  the  parties 
is  plain  and  certain  in  its  terms  and  in  its  nature,  and  the  cir- 
cumstances attending  its  execution  appearing  to  be  free  from 
objections  and  the  amount  stipulated  for  as  the  consideration 
a  fair  one,  "it  is  the  usual  practice  of  courts  of  equity  to  en- 
force its  specific  execution  upon  the  application  of  the  party 
who  has  complied  with  its  stipulations  on  his  part,  or  has 
seasonably  and  in  good  faith  offered,  and  continues  ready,  to 
comply  with  them.     But  it  is  not  the  invariable  practice."' 

1  Willard  v.  Tayloe,  8  Wall.  (U.  S.)  could  have  at  law  would  be  by  a  re- 
557,  565:  Courtland,  etc.  R.  Co.  v.  covery  of  damages  for  the  failure  of 
Grand  Trunk  Ry.  Co.,  63  Me.  90;  defendant  to  deliver  or  allow  those 
Johnson  v.  Johnson,  40  Md,  169.  And  to  deliver  with  whom  it  had  made 
where  it  appeared  that  plaintiff  had  contracts  in  its  own  name  but  for 
entered  into  contract  with  a  com-  the  benefit  of  both,  to  tlie  plaintiflF 
peting  manufacturer  of  glue  from  its  due  proportion  of  the  fish  skins. 
fish  skins  by  which  it  was  to  receive  It  sufficiently  appears  that  the  prin- 
from  producers  through  the  com-  cipal  market  for  them  is  in  Glouces- 
peting  manufacturer  certain  quan-  ter,  that  most  of  the  skin  producers 
titles,  and  as  stipulated,  it  further  there  are  under  contract  with  the  de- 
appearing  that  it  was  practically  fendant,  and  that  the  article  isof  very 
impossible  to  obtain  the  skins  in  any  limited  production.  '  If  the  plaintiff 
other  market,  and  to  be  deprived  of  is  unable  to  obtain  skins  produced 
them  would  result  in  very  great  in-  by  firms  which  have  contracts  with 
jury  to  plaintiff,  if  not  in  destroying  the  defendant'  it  is  found  that 'it 
his  business,  the  court  held  there  will  be  very  difficult,  if  not  impos- 
was  no  adequate  remedy  at  law  and  sible,  for  it  to  carry  on  its  business.' 
there  should  be  a  decree  for  specific  This  continuing  injury,  leading  to 
performance.  The  court  say:  "The  difficulties  in  the  management  of 
next  objection  of  the  defendant  is,  the  plaintiff's  business,  and  possibly 
that,  even  if  it  violates  its  contract,  to  its  utter  destruction,  is  one  that 
it  is  not  shown  that  the  plaintiff  has  coulil  not  be  computed  in  damages, 
not  an  adequate  remedy  at  law.  The  It  would  be  practically  impossible 
only  remedy  which  tiie  plaintiff  to  estimate  the  amount  of  the  injury 
42 


658 


SPECIFIC   PERFORMANCE. 


[§  430. 


§  430.  Not  a  matter  of  absolute  right  but  of  discre- 
tion.—It  seems  to  be  the  history  of  the  adjudication  upon 
this  subject,  and  the  general  consensus  of  opinion  of  the  courts 
from  a  very  early  period,  that  the  relief  by  specific  perform- 
ance is  not  a  matter  of  absolute  right  to  either  party,  but 
rests  in  the  sound  discretion  of  the  court,  to  be  exercised  upon 
a  consideration  of  all  the  circumstances  of  each  particular  case. 
"The  discretion  which  may  be  exercised  in  this  class  of  cases," 
says  the  court  in   Willard  v.  Tayloe^  "  is  not  an  arbitrary  or 


or  to  repair  it.  Tlie  amount  of  tlie 
plaintiflf's  property  invested  in  the 
manufacture  must  lose  a  consid- 
erable but  uncertain  amount  of  its 
value.  The  injury  thus  threatened 
would  be  practically  irreparable." 
Gloucester,  etc.  Co.  v.  Russia,  etc. 
Co.,  154  Mass.  93,  97,  12  L.  R.  A. 
563,  565;  Florence  Sewing  Machine 
Co.  v.  Grover,  etc.  Machine  Co.,  110 
Mass.  11. 

18  Wall.   (U.  S.)  557,  567.     In  this 
case  Mr.  Justice  Field  has  collected 
and  quoted  from  numerous  authori- 
ties which   are    here    given.     "The 
jurisdiction,   said  Lord   Erskine  (12 
Ves.  Jr.  332),  '  is  not  compulsory  upon 
the  court,  but  the  subject  of  discre- 
tion.    The  question  is  not  w^hat  the 
court  must  do,  but  what  it  may  do 
under  circumstances,  either  exercis- 
ing the  jurisdiction  by  granting  the 
specific   performance  or  abstaining 
from  it.'     And  long  previous  to  him 
Lord  Hardwicke  and  other  eminent 
equity  judges  of  England   had,  in  a 
great  variety  of  cases,  asserted  the 
same    discretionary    power    of    the 
court.  In  Joynes  v.  Statham  (B  Atky ns, 
388),  Lord  Hardwicke  said :  'The  con- 
stant doctrine  of  this  court  is  that  it 
is  in  their  discretion  whether  in  such 
a  bill  they  will  decree  a  specific  per- 
formance or  leave  the  plaintiff  to  his 
remedy  at  law.'    And  in  Underwood 
v.   Hitchcox  (1  Ves.   Sen.  279),  the 
same  great  judge  said  in  refusing  to 
enforce    a    contract:  'The    rule    of 


equity  in  carrying  agreements  into 
specific  performance  is  well  known, 
and  the  court  is  not  obliged  to  deci'ee 
every  agreement  entered  into,  though 
for  valuable  consideration,  in  strict- 
ness of  law,  it  depending  on  the  cir- 
cumstances.'   Later  jurists,  both  in 
England  and  in  the  United  States, 
have  reiterated  the  same  doctrine. 
Chancellor    Kent,    in    Seymour    v. 
Delancy  (6  Johns.  Ch.  222).  upon  an 
extended  review  of  the  authorities 
on  the  subject,  declares  it  to  be  a 
settled  principle  that  a  specific  per- 
formance of  a  contract  of  sale  is  not 
a  matter  of  course,  but  rests  entirely 
in  the  discretion  of  the  court  upon  a 
view  of  all  the  circumstances;  and 
Chancellor    Bates  of    Delaware,   in 
Goodwin  v.  Collins,  recently  decided, 
upon  a  very  full  consideration  of  the 
adjudged  cases,  says  that  a  patient 
examination  of  the  whole  course  of 
decisions   on   this   subject   has   left 
with  him  'no  doubt  that,  as  a  matter 
of  judicial  history,  such  a  discretion 
has  always  been  exercised  in  admin- 
istering this  branch  of  equity  juris- 
prudence.'   It  is  true  the  cases  cited, 
in  which  the  discretion  of  the  court 
is  asserted,  arose  upon  contracts  in 
which  there  existed  some  inequality 
or  unfairness  in  the  terms,  by  reason 
of  which  injustice  would  have  fol- 
lowed a  specific  performance.     But 
the    same    discretion    is    exercised 
where  the   contract    is   fair  in    its 
terms,  if  its  enforcement,  from  sub- 


SPECIFIC    PERFORMANCE. 


659 


§  430.1 

capricious  one,  depending  upon  the  mere  pleasure  of  the  court, 
but  one  which  is  controlled  by  the  established  doctrines  and 
settled  principles  of  equity.  No  positive  rule  can  be  laid  down 
by  which  the  action  of  the  court  can   be  determined  in  all 
cases.     In  general  it  may  be  said  that  the  specific  relief  will 
be  granted  when  it  is  apparent,  from  a  view  of  all  the  circum- 
stances of  the  particular  case,  that  it  will  subserve  the  ends  of 
justice;  and  that  it  will  be  withheld  when,  from  a  like  view, 
it  appears  that  it  will  produce  hardship  or  injustice  to  either 
of  the  parties.     It  is  not  sufficient,  as  shown  by  the  cases  cited, 
to  call  forth  the  equitable  interposition  of  the  court  that  the 
legal  obligation   under  the  contract  to  do  the  specific  thing 
desired  may  be  perfect.     It  must  also  appear  that  the  specific 
enforcement  will  work  no  hardship  or  injustice;  for  if  that 
result  would  follow,  the  court  will  leave  the  parties  to  their 
remedies  at  law,  unless  the  granting  of  the  specific  relief  can 
be  accompanied  with  conditions  which  will  obviate  that  result. 
If  that  result  can  be  thus  obviated,  a  specific  performance  will 
generally  in  such   cases  be  decreed   conditionally.     It  is  the 
advantage  of  a  court  of  equity,  as  observed  by  Lord  Kedesdale 
in  Davis  v.  Hone  (2  Schoales  &  Lefroy,  318),  that  it  can  modify 

sequent  events,  or  even  from  coUat-  flowing  from  the  specific  execution 
era!  circumstances,  would  work  hard-  of  a  contract,  was  made  the  ground 
ship  or  injustice  to  either   of  the  for  refusing  the  decree  prayed.     In 
parties.  In  the  case  of  City  of  London  that   case   the    defendant   was  tlie 
V.  Nash  (IVes.  Sen.  12),  the  defendant,  owner  of  a  small  estate,  devised  to 
a  lessee,  had  covenanted  to  rebuild  him  on  condition  that  if  he  sold  it 
some  houses,  but  instead  of  doing  within  twenty-five  years  one-half  of 
this,  he  rebuilt  only  two  of  them,  and  the  purchase-money  should  go  to  his 
repaired  the  others.     On  a  bill  by  the  brother.     Having  contracted  to  sell 
city  for  a  specific  performance  Lord  the  property,  and  refusing  to  carry 
Hardwicke  held  that  the  covenant  out  the  contract  under  the  pretense 
was  one  which  the  court  could  spe-  that  he  was  intoxicated  at  the  time, 
cifically  enforce;  but  said, 'the  most  a  bill  was  filed  to  enforce   its  spe- 
material  objection  for   the   defend-  cific  execution,  but  Lord  Hardwicke 
ant,  and  which  has  weight  with  me,  is  reported  to  have  said  that,  with- 
is  that  the  court  is  not  obliged  to  out    regard    to    the    other   circum- 
decree  a  specific  performance,  and  stance,  the  hardship  alone  of  losing 
will  not  when  it  would  be  a  hard-  half  the  purchase-money,  if  the  con- 
ship,  as  it  would  be  here  upon  the  de-  tract    was    carried   into  execution, 
fendant  to  oblige  him,  after  having  was  sufficient  to  determine  the  dis- 
very  largely  repaired  the  houses,  to  cretion  of  the  court  not  to  interfere, 
pull  them  down  and  rebuild  them.'  but  to  leave  the  parties  to  the  law." 
In  Faine  v.  Brown,  similar  hardship. 


660  SPECIFIC   PERFORMANCT?.  [§  430. 

the  demands  of  parties  according  to  justice;  and  where,  as  in 
that  case,  it  would  be  inequitable,  from  a  change  of  circum- 
stances, to  enforce  a  contract  specifically,  it  may  refuse  its 
decree  unless  the  party  will  consent  to  a  conscientious  modifi- 
cation of  the  contract,  or,  what  would  generally  amount  to 
the  same  thing,  take  a  decree  upon  condition  of  doing  or  re- 
linquishing certain  things  to  the  other  party." 

While  the  courts  will  no  doubt  hold  to  this  old  and  seem- 
ingly well-understood  rule,  it  is  difficult  to  see  how;  as  a  mat- 
ter of  fact,  the  relief  is  one  resting  entirely  in  the  discretion 
of  the  court  for  the  reason  that  the  rules  of  law  governing  the 
procedure  and  defining  fully  and  explicitly  when,  under  what 
circumstances  and  in  what  manner  the  relief  should  be  granted 
in  almost  every  conceivable  case  has  been  so  clearly  and  with- 
out dissent  determined  by  the  courts,  that  the  law  governing, 
or  that  should  govern,  the  courts  in  a  case  of  specific  perform- 
ance seems  so  well  settled  that  these  cases  should  no  longer 
rest  in  discretion  but  in  absolute  rights  of  parties.  In  a  sense, 
perhaps,  equity  cases  all  rest  somewhat  in  that  discretion 
which  induces  the  court  to  do  equity  and  not  inequity,  follow- 
ing the  well-settled  law  and  practice  which  governs  the  case. 
Can  it  be  said  that  cases  for  specific  performance  rest  in  any 
broader  discretion  than  this  ?^ 

1  In  Theison  v.  Watts,  1  Johns.  Ch.  more    freedom   in   its   action   tlmn 

(Md.)    13.    15,   the   chancellor    said:  when  exercising  its  ordinary  po\s-- 

"The  discretion,  it   is  true,   is   not  ers."     In   Plummer  v.    Keppler,  26 

arbitrary  and  capricious,  but  sound  N.  J.  Eq.  481,  482,  the  court,  after 

and   reasonable;  adapting   itself  to,  declaring  that  the  remedy  by  spe- 

and  being  governed  as  far  as  prac-  cific  performance  is  discretionary, — 

ticable  by,  general  rules  and  prin-  that  the  question  is  not  what  must 

ciples,  when  those    rules  and  prin-  the  court  do,  but  what  in  view  of 

ciples  are  not  in  conflict   with  the  all  the  circumstances  of  the  case  in 

justice  of  the  case  between  the  par-  judgment  it   should  do  to  further 

ties.     There  would  seem   to   be  no  justice,   say:    "When   the   contract 

doubt  tliat  when  a  court   of  chan-  has  been  fairly  procured,  and  its  en- 

cery   is    called    upon    to    exert    its  forcement  will  work  no  injustice  or 

extraordinary  jurisdiction   in   com-  hardship,  it  is  enforced  almost  as  a 

polling  the  specific  performance  of  matter  of  course;  but  if  it  has  been 

contracts,  though  it  is  not  entirely  procured   by  any  sort  of   fraud  or 

exempt  from    those    general    prin-  falsehood,  or  its  enforcement  will  be 

ciples    of   equity   which  have  been  attended    with    great    hardship    or 

found  by  experience  best  and  most  manifest  injustice,  the  court  will  re- 

Burely  to  advance  the  aims  and  ends  fuse  its  aid."    In  Sweeney  v.  O'Hora, 

of    justice;    there    is    nevertheless  43  Iowa,  34,  39,  the  court  say:  "The 


431.1  SPECIFIC    PERFORMANCE. 


661 


§431.  Some  requisites  to  the  relief.— The  specific  per. 
formance  of  the  contract  is  somewhat  optional  with  the  par- 
ties, but  if  performance  is  refused,  it  is  said  that  it  cannot  be 
enforced  unless  the  relief  be  necessary  because  of  the  inade- 
quacy of  the  damages  afforded  by  an  action  at  law  or  the  im- 
possibility of  ascertaining  the  damages;  for  if  full,  complete 
and  adequate  remedy  is  afforded  by  way  of  a  judgment  at  law, 
equity  will  not  decree  specific  performance.^  The  perform- 
ance of  the  contract  in  specie  must  be  practicable  and  possible, 
else  the  court  cannot  decree  it,  for  the  court  must  base  its  de- 
cree upon  the  contract  made  by  the  parties  and  will  not  change 
it  in  any  particular.  And  so  where  a  bill  was  filed  to  compel 
specific  performance  of  a  contract  executed  by  a  husband  upon 
his  homestead,  his  wife  refusing  to  join  in  any  conveyance 
or  release  by  which  an  alienation  of  the  homestead  would  be 
effected,  the  laws  of  the  state  requiring  that  the  wife  should 
join  in  order  to  validate  the  conveyance,  it  was  held  that  a 
court  of  equity  would  not  decree  specific  performance  nor  per- 
formance of  the  contract  with  a  deduction  or  compensation  for 
any  estate  or  right  the  defendant  was  unable  to  convey.  The 
court  say:  "It  has  accordingly  been  settled  that  the  contract 
will  not  be  enforced  with  compensation  when  a  material  part 
of  the  subject-matter  is  wanting.  Nor  when  a  reasonable  esti- 
mate of  the  compensation  is  unattainable  for  the  want  of  suffi- 
cient data.  ISTor  when  the  difference  in  value  of  the  interest 
contracted  for  and  the  interest  actually  to  be  conveyed  is  in- 
capable of  computation.  Nor  when  the  alienation  of  the  par- 
tial interest  of  the  vendor  might  prejudice  the  rights  of  third 
persons  interested  in  the  estate."  ^ 

discretion  to  be  exercised  is  not  an  upon  premises  conveyed  as  provided 

arbitrary  or  capricious  one,  but  one  in  contract.     Madison   Athletic  Co. 

governing  itself  as  far  as  may  be  by  v.  Brittin,  60  N.  J.  Eq.   160.  46  Atl. 

general  rules  and  principles."  And  in  65'i;  Meehan  v.  Owens,  196  Pa.  St.  69, 

Rudolph  v.  Covell,  5  Iowa,  525,  it  was  46  Atl.  263;  Canal  Commissioners  v. 

said:  ^'That  it  is  always  desirable  to  Sanitary  District  of  Chicago,  191  111. 

make  the  least  draft,  which  is  pos-  326,  61  JS.  E.  71;  Hull  v.   Hull,  117 

sible,  upon  this  undefined  power  of  Iowa,  63,  90  N.  W.  496. 

discretion,  and  to  determine  causes  2  Phillips  v.  Stauch,  20  Mich.  369, 

upon  established  rules."  383,  citing  Fry  on  Spec.  Perf..  sees. 

1  Mirandona  v.  Burg,  49  La.  Ann.  305,  797,  813,  814;  Engle  v.  White,  104 

656,  21  So.  723.     And  it  was  so  held  Mich.  15;  Walker  v.  Kelly,  91  Mich, 

where  defendant  refused  to  build  213;  Camden,  etc.  Ry.  Co.  v.  Adams, 


662  SPECIFIC    PERFORMANCE.  [§  431. 

It  is  also  a  requisite  that  the  contract  be  supported  by  a  valu- 
able consideration;  not  that  the  consideration  should  be  entirely 
adequate,  for  mere  inadequacy  of  price  is  not  of  itself  sufficient 
to  set  aside  the  contract,  but  if  the  inadequacy  is  so  pronounced 
as  to  give  to  the  contract  the  character  of  unreasonableness 
and  hardship,  the  court  in  its  discretionary  power  may  decline 
to  enforce  its  specific  performance  and  leave  the  parties  to  re- 
cover damages  at  law.^ 

An  interesting  question  which  has  received  the  attention  of 
the  court  is,  to  what  extent  and  under  what  circumstances  will 
a  court  of  equity  specifically  enforce  a  contract  made  by  a  tes- 
tator to  will  to  another  certain  portions  of  his  property,  the 
contract  being  supported  by  a  consideration.  At  first  blush 
it  would  seem  to  infringe  upon  the  well  understood  rule  of 
law  governing  wills,  that  a  will  is  ambulatory  and  revocable. 
But  the  adjudications  are  based  upon  a  different  theory;  not 
that  the  testator,  by  reason  of  this  contract,  cannot  change  or 
revoke  a  former  will,  but  that  the  agreement  to  devise  or  be- 
queath the  property,  supported  by  a  valuable  consideration, 
becomes  of  itself,  and  independent  of  any  will  which  has  been  or 
may  be  made,  a  contract  which  can  be  enforced  after  the  death 
of  the  testator. 

A  leading  case  upon  the  subject  is  Johnson  v.  Rublell^  where 
the  complainant,  a  son,  was  induced  by  his  father  in  his  life- 
time to  convey  certain  portions  of  an  estate  received  upon  the 
death  of  his  mother  to  his  sister  in  consideration  of  a  promise 
from  the  father  that  if  he  would  make  such  conveyance  he 
would  leave  his  estate  equally  to  the  complainant  and  his 
sister,  and  that  if  the  son  did  not  so  convey  the  property  as 
requested  that  he  would  make  his  will  unequal  and  leave  to 
his  sister  the  larger  portion.  Upon  this  inducement  the  son 
conveyed  to  the  sister.  The  father  afterwards  died,  and  it  was 
found  that  he  had  entirely  cut  off  and  excluded  his  son  from 

62  N.  J.  Eq.  656,  51  Atl.  24;  Hall  v.  Allen  (Mass.),  259;  Seymour  v.  De- 
Hall,  125  111.  95, 16  N.  E.  896;  Schoon-  lancy,  6  Johns.  Ch.  (N.  Y.)  222;  Erwin 
maker  v.  Bonnie  et  aL,  119  N.  Y.  565,  v.  Parham,  12  How.  (U.  S.)  197; 
23  N.  E.  1106;  Warner  v.  Schweitzer,  Bartley  v.  Greenleaf,  112  Iowa,  82,  83 
67  N.  Y.  S.  780;  Ellis  v.  Saloman,  67  N.  W.  824;  Bird  v.  Bradburn,  127  N.  C. 
N.  Y.  S.  1025.  411,  37  S.  E.  456;  Baum  v.  Baura,  109 

1  Townsend  v.  Blanchard,  117  Iowa,  Wis.  47,  85  N.  W.  123. 

36,  90  N.  W.  519;  Park  v.  Johnson,  4  2 10  N.  J.  Ch.  (2  Stockt.)  332,  335. 


661 


p  431.1  SPECIFIC    PEKFOKMANCE. 

all  rio-ht  and  participation  in  his  estate.     The  bill  was  filed  for 
specific  performance.     The  court  say :  "  There  can  be  no  doubt 
that  a  person  may  make  a  valid  agreement  binding  himself 
leo-ally  to  make  a  particular  disposition  of  his  property  by  last 
wTu  and  testament.     The  law  permits  a  man  to  dispose  of  his 
own  property  at  his  pleasure,  and   no  good  reason  can  be  as- 
si'vned  why  he  may  not  make  a  legal  agreement  to  dispose  of 
his  property  to  a  particular  individual  or  for  a  particular  pur- 
pose as  well  by  will  as  by  a  conveyance  to  be  made  at  some 
specified  future  period  or  upon  the  happening  of  some  future 
event.     It  may  be  unwise  for  a  man  in  this  way  to  embarrass 
himself  as  to  the  final  disposition  of  his  property,  but  he  is  the 
disposer  by  law  of  his  own  fortune  and  the  sole  and  best  judge 
as  to  the  time  and  manner  of  disposing  of  it.    A  court  of  equity 
will  decree  the  specific  performance  of  such  an  agreement  upon 
the  recognized  principles  by  which  it  is  governed  in  the  exer- 
cise of  this  branch  of  its  jurisdiction."  ^ 

But  a  mere  promise  to  make  a  will  devising  property  to  a 
certain  person  could  not  be  enforced  for  the  reason  that  it  lacks 
consideration.     The  court  of  chancery  has  lent  its  aid  to  the 
specific  enforcement  of  contracts  where  they  were  supported 
by  what  a  court  of  equity  would  consider  a  meritorious  con- 
sideration.    And  it  has  been  held,  "to  entitle  the  party  to  the 
aid  of  this  court  the  instrument  must  be  supported  by  a  valuable 
consideration,  or,  at  least,  by  what  a  court  of  equity  considers 
a  meritorious  consideration,  as  payment  of  debts,  or  making  a 
provision  for  a  wife  or  child."  ^     But  the  court  will  not  enforce 
an  agreement  to  make  a  will,  even  where  there  is  an  alleged 
sufficient  consideration,  except  the  proofs  be  very  clear  and 
convincing;  ^  and  where  one  agreed  as  part  consideration  for  a 
conveyance  of  property  to  give  at  his  death  to  the  person  mak- 
ing such  conveyance  all  of  his  estate,  it  was  held  to  be  too  in- 

1  Duvale  v.  Duvale,  54  N.  J.  Eq.  581,  specific  performance.   In  the  several 

588-  Fogle  V.  Michael  Church,  48  S.  C.  briefs  of  counsel  in  49  L.  R.  A.  527, 

86.  '  In  Bryson  v.  McShane,  48  W.  Va.  will  be  found  many  cases  cited  upon 

126  49  L.  R.  A.  527,  35  S.  E.  848,  the  this  subject. 

contract  was  that  in  consideration  2  Minturn  v.  Seymour,  4  Johns.  Ch. 

of  care,  support,  clothing  and  burial,  (N.  Y.)  497,  500. 

an    aged    person  without  relatives  3  Richardson  v.  Orth,  40  Oreg.  252, 

agreed  to  turn  over  her  entire  prop-  66  Pac.  935. 
erty.     The  court  of  equity  decreed  a 


Qid4i  SPECIFIC    PEEFORMANCE.  [§  43L 

definite.^  Generally  it  may  be  said  that  the  contract  must  be 
such  an  aareeraent  as  could  be  enforced  and  which  would  be 
a  legal  basis  for  a  suit  at  law  for  damages.^  The  contract  must 
be  complete  and  certain.  Where  the  contract  was  to  convey 
certain  realty  at  a  future  time  on  payment  of  part  of  the  con- 
sideration, the  vendee  to  execute  certain  securities  for  deferred 
payments  to  be  agreed  upon  at  that  time,  it  was  held  that  the 
contract  was  incomplete  and  the  court  refused  to  decree  specific 
performance.' 

So  where  an  agreement  was  made  orally  with  the  receivers 
of  a  railroad  company  by  which  money  was  to  be  furnished  as 
required  to  complete  the  railroad,  receiver's  certificates  and 
other  securities  as  collateral  to  be  delivered  in  payment  of  the 
money  furnished,  it  was  held  that  the  agreement  was  indefinite 
and  would  not  warrant  a  decree  for  specific  performance.*  And 
where  specific  performance  was  sought  of  certain  provisions  in 
a  contract  which  were  capable  of  different  constructions,  it  was 
held  to  be  insufficient  upon  which  to  base  a  decree  for  specific 
performance.*  It  may  be  said  to  be  a  requisite  that  the  property 
in  question  must  be  fully  and  with  certainty  described  so  that 
there  can  be  no  difficulty  in  ascertaining  what  property  is  in- 
volved in  the  contract.  And  the  contract  must  be  fair  and  rea- 
sonable—  such  a  contract  as  appeals  to  the  discretion  of  the 
court  for  its  enforcement."  A  contract  which  requires  the 
doing  of  an  act  which  is  solely  within  the  volition  of  the 
obligor  cannot  be  specifically  enforced;  as,  for  example, 
an  agreement  to  sign  a  lease,  or  for  the  appointing  of  an 
arbitrator,  or  the  exercising  of  an  option  to  purchase  prop- 
erty. 

Among  this  class  of  contracts  should  also  be  mentioned 
contracts  by  which  persons  are  engaged  to  perform  certain 
professional  duties ;  as  for  the  appearance  of  a  star  in  a  theat- 

1  Ripson  V.  Hart,  72  N.  Y.  S.  ington.  etc.  Ry.  Ca,  22  Ky.  L.  Rep. 
791.  1133,  .59  S.  W.  864 

2  Kent  V.  Dean,  128  Ala-  600,  30  So.  ^Biehm  v.  Sperry,  92  Md.  378,  48 
543.  Atl.  368. 

3  Johnson  v.  Plotner,  15  S.  Dak.  154,  ^Caperton  v.  Forrey,  49  La.  Ann. 
87  N.  W.  926.  S7-2,  21  So.  600;  Sutliff  v.  Dayton,  106 

4  Bibber-White  Co.  v.  White  River,  Mich.  179.  65  N.  W.  522;  Logansport 
etc.  Co.,  110  Fed.  472;  Ecton  v.  Lex-  Hardware  Ca  v.  City  of  Logansport, 

114  Fed.  688. 


R  431.1  SPECIFIC    PEKFORMANCE.  665 

Tical  production,  or  a  singer  at  an  opera,  or  a  lecturer  to  give 
a  lecture,  or  any  personal  or  professional  performance.    These 
contracts,  howeVer,  are  generally  the  subject  for  an  injunction 
enjoining  the  parties  from  appearing  with   any   other  rival 
company,  or  doing  professional  work  for  another  of  opposing 
interests;  but  the  court  will  not  undertake  to  decree  specific 
performance,  but  will  leave  the  party  to  his  action  for  dam- 
ages.^    The  contract  must  be  capable  of  being  enforced  at 
once ;  where  it  is  long  and  continuous  in  its  terms,  specific  per- 
formance will  be  refused.2     ^^^^\  go  a  contract  for  a  partner- 
ship, where  there  has  been  no  part  performance,  will  not  be 
specifically  enforced.''     The  court  will  refuse  a  decree  for  the 
specific  performance  of  a  contract  which  is  unconscionable,  or 
which  involves  great  hardship,  or  which  is  contrary  to  good 
morals  or  against  public  policy.*     It  can  hardly  be  said  that 
the  court  of  equity,  however,  would  refuse  specific  perform- 
ance of  a  contract  upon  the  sole  ground  of  hardship,  where 
the  contract  was  not  unconscionable  or  had  not  been  obtained 
by  fraud  or  false  representation  of  facts,  but  on  the  contrary 
was  entered  into  after  a  full  knowledge  of  the  facts  and  after 
due  deliberation,  and  when  made  was  considered  fair  and  rea- 
sonable.^ 

iLumley  v.   Wagner,  1  De   Gex,  shown  that  the  contract  is  fair  and 

M.  &  G.  604;  Demattos  v.  Gibson,  4  just,  and  that  it  would   not  be  in- 

De  Gex  &  J.  276;  Daly  v.  Smith,  49  equitable  to  enforce  it.     The  court 

How.  Pr.    158;   Hayes  v.  Willio,  11  will   not  lend   its  aid  to  enforce  a 

Abb.  Pr.  (N.  S.)   174;    Robertson   v.  contract  which  is  in  any  respect  un- 

Bullions,  9  Barb.  (N.  Y.)  130.  fair  or  savors  of  oppression,  but  in 

-  Berliner,  etc.  Co.  v.  Seaman,  49  such  cases  will  leave  the  party  to  bis 

C.  C.  A.  99,  110  Fed.  30;  Dukes  v.  remedy  at  law." 

Bash,  29  Ind.  App.  103,  64  N.  E.  47.  6  In  Southern  Ry.  Co.  v.  Franklin, 

3  Goldberg  v.  Kirschstein,  73  N.  Y.  etc.  Ry.  Co.,  96  Va.  693,  44  L.  R.  A. 

S.  358,  297,  o03,  it  was  said:  "The  enforce- 

*Caperton  v.  Ferrey,  49  La.  Ann.  mentof  the  contract  is  also  objected 

872,  21  So.  600;  Newman  v.  Freitas,  to  on  the  ground  of  hardship.     It  is 

129'  Cal.  283,  50  L.  R.  A.  548,  61  Pac.  not  pretended  that  the  lease  was  in- 

907;  Pope  Mfg.  Co.  v.  Gormully,  144  duced  by  fraud  or  fal^e  representa- 

U.  S.  224,  36  L.  Ed.  414;  Kelly  v.  Cen-  tions  of  facts;  on  the  contrary,  it  was 

tral,  etc.   R.  Co.,  74  Cal.  557,  16  Pac.  entered  into  after  due  deliberation, 

386.     In  Agard  v.  Valencia,  39  Cal.  was  reasonable  and  fair  when  made, 

292,    it    was    said:    "Another  well-  and,  as  declared   in  the  preamble, 

established  rule  in  courts  of  equity  'deemed  judicious  and  beneficial 'to 

is  that  in  a  suit  for  a  specific  per-  both  parties.    Operation  under  it  has 

formance  it  must  be  aflSrmatively  demonstrated  that  the  Franklin  Com- 


666 


SrECTFIO    PERFORMANCE. 


[§  432. 


§432.  Tender  of  performance.— "He  who  seeks  equity 
must  do  equity  "  is  a  maxim  that  must  be  regarded  in  every 
proceeding  in  a  court  of  equity,  and  when  there  are  conditions 
precedent  to  the  performance  of  the  contract,  the  party  who 


pany,  instead  of  becoming  'a  valu- 
able feeder  '  to  the  main  line  of  the 
lessee,  has  proven  to  be  an  unprofit- 
able adjunct.  The  hardship  is  due, 
in  the  main,  to  miscalculation  in 
making  the  contract,  and  in  part  to 
subsequent  events  and  a  change  of 
circumstances  in  no  v^ise  attribu- 
table to  the  lessor.  It  is  not  doubted 
that  there  are  adjudged  cases  which 
hold  that  a  court  of  equity  will  not 
decree  specific  performance  of  the 
agreement  where  it  would  entail 
great  hardship,  and  the  hardship 
was  due,  in  some  measure  at  least, 
to  the  conduct  of  the  other  party. 
Booten  v.  Scheffer,  21  Grat  474; 
Gish  V.  Jamison,  96  Va.  312,  31  S.  E. 
521,  and  Willard  v.  Tayloe,  8  Wall. 
564,  19  L.  Ed.  503.  But  we  question 
whether  a  court  of  equity  ever  re- 
fuses specific  performance  upon  the 
sole  objection  of  hardship,  where  the 
contract  in  its  inception  was  fairly 
and  justly  made,  and  the  hardship 
is  the  result  of  miscalculation,  or  is 
caused  by  subsequent  events  or  a 
change  of  circumstances,  and  the 
party  seeking  performance  is  wholly 
without  fault.  In  Marble  Co.  v.  Rip- 
ley, 10  Wall.  339,  356,  19  L.  Ed.  960, 
Mr.  Justice  Strong,  in  speaking  of 
contracts  that  were  supposed  to  be 
fair  and  equal  when  made,  but  in 
the  lapse  of  time  have  become  bad 
bargains,  said:  '  Besides,  it  is  by  no 
means  clear  that  a  court  of  equity 
will  refuse  to  decree  the  specific  per- 
formance of  a  contract,  fair  when  it 
was  made,  but  which  has  become  a 
hard  one  by  the  force  of  subsequent 
circumstances  or  changing  events.' 
The  element  of  risk  enters  more  or 
less  into  every  contract,  and  the  ob- 
ligation to  perform  it  cannot  be  al- 


lowed to  depend  upon  the  question 
whether  it  has  proved  to  be  advan- 
tageous or  disadvantageous.  It 
would  be  a  travesty  upon  justice, 
and  the  reputed  sanctity  of  con- 
tracts would  be  of  little  avail,  if  par- 
ties could  refuse  the  performance  of 
contracts  having  some  years  to  run, 
which  were  fairly  entered  into,  and 
believed  to  be  just  and  equal  when 
made,  merely  because  from  contin- 
gencies, whose  possibility  might 
have  been  foreseen,  they  had  turned 
out,  in  the  course  of  execution,  to 
be  a  losing,  instead  of  a  profitable, 
bargain."  In  Schmidt  v.  Louisville 
&  N.  R.  Co.,  19  Ky.  L.  Rep.  666,  38 
L.  R.  A.  809,  it  appeared  that  the 
lessor  was  largely  indebted  to  the 
defendant  company,  the  a.'^siguee  of 
the  lease,  for  moneys  furnished  for 
it  under  the  contract  of  lease,  and  to 
be  repaid  by  it;  that  judgment  had 
been  recovered  for  the  amount,  and 
an  effort  made  to  sell  the  leased  road 
to  pay  it,  but  nothing  could  be  made, 
because  no  one  would  give  anything 
for  the  road  subject  to  the  mortgage 
subsisting  upon  it^  It  also  appeared 
that  the  leased  road  was  being  run 
at  a  heavy  loss,  the  necessary  cost 
of  operating  having  exceeded  the  re- 
ceipts in  the  sum  of  $199,411.70.  The 
defendant  claimed  that  it  would  be 
harsh  and  inequitable,  under  these 
circumstances,  to  require  it  to  con- 
tinue to  operate  the  road;  but  the 
court  held  that  the  facts  in  the  case 
were  not  such  as  to  release  the  de- 
fendant from  performing  the  con- 
tract. Nor  can  the  objection  of 
hardship,  maae  in  the  case  before 
us,  avail  to  stay  the  hands  of  the 
court. 


§  432.]  SPEOIFIO   PEKFORMANCE.  667 

would  enforce  it,  if  for  him  to  perform,  must,  by  tender  or 
otherwise,  show  his  willingness  and  abilit}''  to  perform  the  con- 
ditions. As  where  one  seeks  the  specific  performance  of  a  land 
contract  upon  which  there  are  payments  due,  he  must  show  his 
willingness  and  ability  to  perform  the  contract  by  tendering 
the  payments  or  otherwise  before  he  can  force  a  conveyance 
under  the  contract.  He  must  at  least  be  able  to  show  that  he 
is  ready,  willing  and  able  to  pay  the  contract  price  as  he  has 
stipulated  for  its  payment.  The  better  and  safer  practice  is  to 
make  an  absolute  tender  of  the  amount  due  before  seeking  to 
enforce  a  specific  performance.  Where  the  vendee  had  made 
payments  according  to  the  contract,  and  had  tendered  the  bal- 
ance of  the  purchase  price,  he  was  held  entitled  to  specific  per- 
formance.^ It  seems  that  as  strict  and  unconditional  a  tender 
as  is  required  in  a  court  of  law  is  not  necessary  in  equity;  it  is 
regarded  sufficient  if  there  is  a  willingness  and  ability  coupled 
with  an  offer  to  pay  the  amount  or  perform  the  condition,  and 
there  need  not  be  a  strict  tender  or  payment  of  money  into 
court. 

Where,  in  a  written  contract  to  convey  land  on  payment  of 
the  purchase  price,  the  plaintifl'  offered  the  defendant  a  sum  of 
money  within  a  trifle  of  the  full  amount  due,  which  the  de- 
fendant refused  to  accept,  not  objecting  because  of  the  insuffi- 
ciency of  the  amount,  and  the  plaintiff  averred  his  willingness 
to  pay  the  full  amount  when  ascertained,  it  was  held  that  the 
plaintiff  was  entitled  to  a  decree  for  specific  performance.  The 
court  say:  "  The  fact  that  the  plaintiff  had  made  a  computa- 
tion of  the  amount  due,  and  tendered  the  specie  accordingly,. 
a  fraction  short  of  what  was  actually  due  by  computation, 
when  he  was  not  bound  to  make  a  strict  tender,  does  not  pre- 
vent his  act  from  being  a  good  offer  of  performance,  if  the 
other  party  was  ready  to  perform  on  his  part.  But,  making 
no  objection  to  the  amount,  the  defendant  wholly  refused  to 
perform."  ^     And  where  some  act  is  to  be  performed  as  a  con- 

1  Johnson  v.  Sukeley,  2  McLean  Page  v.  Gamine,  29  Wash.  387,  69 
(U.  S.),  562;  Rogers  v.  Taylor,  40  Pao.  1093;  Laverty  v.  Hall,  19  Iowa, 
Iowa,  193.  -'>26;  Worch  v.  Woodruff,  61  N.  J.  Eq. 

2  Irvin  V.  Gregory,  13  Gray  (Mass.),  78,  47  Atl.  725;  McCuUy  v.  McLean, 
215,  219;  Lamprey  v.  St.  Paul,  eta  48  W.  Va.  6-25,  37  S.  E.  559;  Bennett 
Ry.  Co.,  86  Minn.  509,  91  N.  W,  29;  v.  Bennett,  42  N.  Y.  S.  435. 


668  SPECIFIC    PEEFORMANCE.  [§  433. 

dition  precedent,  as  the  conveying  of  certain  property  in  ex- 
change for  the  property  contracted  for,  a  tender  of  a  good  and 
sufficient  deed  of  the  property  should  be  made  by  the  party 
who  seeks  specific  performance  of  the  contract.^ 

If  the  defendant  has  in  any  way  rendered  it  unnecessary  to 
make  a  tender,  as  by  being  himself  unable  to  perform  the 
contract,  or  by  actual  refusal  to  accept  the  condition  and  carry 
out  his  obligation,  it  will  not  be  necessary  for  the  plaintiff  to 
tender  the  amount  or  to  perform  the  condition.  The  law  never 
requires  a  vain  thing.  And  so  where  defendant  contracted  to 
convey  certain  real  estate  at  a  certain  time  free  from  incum- 
brance, and  the  plaintiff  seeking  to  enforce  the  contract  ten- 
dered the  amount  due,  it  was  held  that  an  actual  tender  was 
not  necessary  to  enable  the  plaintiff  to  maintain  an  action  for 
specific  performance  for  the  reason  that  the  defendant  was 
unable  to  perform  the  contract.^ 

§433.  The  procedure  —  The  parties.— The  procedure  in 
equity  for  specific  performance  is  by  bill  of  complaint  in  the 
court  having  jurisdiction  of  the  cause.  Parties  to  the  bill  are 
generally  the  parties  to  the  contract  sought  to  be  enfocced. 
If  it  is  a  contract  for  the  conveyance  of  land,  the  party  com- 
plainant should  be  the  person  who  has  the  legal  right  to  de- 
mand performance  and  to  whom  it  has  been  refused:  or  his 
assignee,  if  the  contract  is  assignable;  or  his  personal  repre- 
sentatives or  heirs,  if  the  contract  is  enforceable  by  them. 
The  defendant  should  be  the  party  who  is  under  obligations  to 
perform  the  contract  and  who  it  is  alleged  has  refused  per- 
formance, or  his  heirs  in  case  of  his  death,  or  personal  repre- 
sentatives in  some  instances.^  To  such  an  action  the  person 
who  holds  the  legal  title  to  the  land  must  be  made  a  party, 
even  though  he  has  no  beneficial  interests  in  the  property, 
upon  the  theory  that  the  decree  obtained  might  affect  him.* 
The  rule  may  be  generally  stated  that  all  persons  who  would 

1  Bidwell  V.  Garrison  (N.  J.  Eq.,  Dexter,  9  Mich.  246;  Morgan  v.  Mor- 
1897),  36  AtL  941.  gan,  2  Wheat.  (U.  S.)  290;  Long  v. 

2  Luchetti  v.  Frost,  133  CaL  xlx,  65  Brown,  66  Ind.  160;  Young  v.  Young, 
Pac.  969.  45  N.  J.  Eq.  27;  Hofner  v.  Wynkoop, 

3  Champion  v.  Brown,  6  Johns.  Ch,  97  Pa.  St.  130. 

(N.  Y.)  398.  10  Am.  Dec.  343;  Buck  v.        *  Moiibray  v.  Dieckman,  41  N.  Y.  S. 
Buck,  11  Paige  (N.  Y.),  170;  House  v.     82;  Cheeney  v.  Bilby,  20  C.  C.  A.  291. 


R  434.]  SPECIFIC    PERFORMANCE.  6f)0 

be  affected  by  tbe  decree  of  the  court  should  be  made  parties 
either  complainant  or  defendant.^ 

It  has  been  said  that  "  equity,  .  .  .  having  once  taken 
jurisdiction  to  enforce  the  contract,  will  retain  t  to  adjust  the 
conflicting  claims  to  the  purchase-inoney  due  from  the  vendee. 
The  vendee  will  be  decreed  to  bring  his  money  into  court  for 
the  party  entitled  to  it.  In  such  case  the  attachment  or  exe- 
cution creditor  is  a  proper  party  to  the  bill,  for  at  most  he 
stands  in  the  place  of  the  vendor,  bound  by  his  duty,  if  he 
claims  his  interest."  ^ 

§  434.  Bill  of  complaint.— Following  the  rule  usually  ap- 
plicable to  the  complaint,  it  may  be  said  that  it  should  contain 
all  the  allegations  necessary  to  make  out  a  case  for  specific  per- 
formance,—  a  statement  of  the  contract  which  is  to  be  enforced 
with  all  of  the  attending  circumstances  under  which  the  con 
tract  was  made  and  sufficient  allegations  to  show  that  it  is  one 
which  a  court  of  equity  should  decree  to  be  specifically  per- 
formed; that  the  plaintiff  has  performed  or  offered  to  perform 
all  of  the  conditions  and  stipulations  upon  his  part;  that  he  has 
done  all  that  is  necessary  to  entitle  him  to  a  performance  of 
the  contract;  that  the  defendant  has  failed  or  refused  to  per- 
form his  part  of  the  contract,'  and  the  injury  which  results 
from  such  failure;  that  in  equity  and  good  conscience  the  con- 
tract should  be  specifically  performed;  that  a  money  compen- 
sation by  way  of  damages  would  be  inadequate  relief,  and 
usually  an  allegation  that  a  request  has  been  made  of  the  de- 

iln  Williams  v.  Leech,  28  Pa.  St.  was  entered  into  should  be  averred. 
89.  it  was  held  that  all  persons  in-  In  Solt  v.  Anderson.  63  Neb.  15:5,  8& 
terested  in  the  estate  are  proper  par-  N.  W.  1076.  the  complaint  in  sub- 
ties.  Morrow  v.  Lawrence  Univer-  stance  was  that  deceased  was  the 
sit}',  7  Wis.  488.  owner  of  the  land  in  question  in  his 

2Horton  v.  Hubbard,  83  Mich.  123,  life-time  and  at  the  time  of  making 

130;    Gentry  V.  Gentry,  87  Va.  478;  thecontract.  The  plaintiff,  hiswidow, 

Wilcox  V.  Pratt.  125  N.  Y.  688.  is  adrainit^tratrix  of  his  estate;  that 

3  Mansfield  v.  Sherman,  81  Me.  365,  all  of  the  conditions  of  the  contract 

17  Atl.   300;  Northrup  v.  Boone,  66  on  their  part  had  been  performed, 

111.  368;    Pomeroy  v.  Fullerton,  113  and  that  they  were  now  ready  and 

Mo.  440,  21  S.  W.  19;  Borden  v.  Cjrtis,  willing  to  comply  with  the  contract 

46  N.  J.  Eq.  468,  19  Atl.  127;  Stephens  and  execute  the  conveyance;  that 

V.  Soule,  8;^  Cal.  438,  23  Pac.  523.     In  defendant's    refusal   had   prevented 

Stiles  V,  Cain,   134  Cal.  170.66  Pac.  the  full  performance  of  thecontract. 

?31,  it   was   held   that  the  ciroum-  This  statement  was  held  sufficient 
stances  under   which   the   contract 


670  SPECIFIC    PERFORMANCE.  [§  435. 

fendant  and  a  neglect  or  refusal  upon  his  part  to  perform  the 
contract.'  It  is  not  sufficient  to  make  a  general  statement 
that  the  complainant  has  done  all  that  he  is  bound  to  do;  that 
which  he  has  done  should  be  fully  stated  so  that  the  court  may 
determine  whether  he  has  satisfactorily  performed  the  contract 
upon  his  part,  or  is  ready,  willing  and  able  to  perform;  and 
that  the  defendant  may  have  an  opportunity  to  traverse,  if  he 
desires,  the  particular  facts  stated  with  reference  to  the  per- 
formance upon  the  part  of  the  complainant.-  The  property  in 
question  must  be  described  sufficiently  accurate  to  give  to  the 
court  and  opposite  party  a  clear  understanding  of  what  is  in- 
volved and  its  ownership  stated. 

The  jprayer  of  the  complaint  sho\i\(\.  be  that  the  contract  be 
specifically,  and  in  accordance  with  its  terms,  performed  upon 
the  part  of  the  defendant,  and  the  special  prayer  should  be 
followed  by  a  general  prayer  for  relief.  No  doubt  this  would 
be  sufficient  in  any  case  to  afford  whatever  relief  might  be 
necessary  in  an  action  for  specific  performance,  but  the  com- 
plainant may  add  an  alternative  prayer  for  compensation  if 
the  court  should  find  that  the  contract  could  not  be  specifically 
performed.' 

§  435.  Defenses. —  The  usual  defenses  by  demurrer,  plea 
or  answer  may  be  interposed  in  an  action  for  specific  perform- 
ance. 

Demurrer.  If  upon  the  face  of  the  complaint  it  appears,  ad- 
mitting all  the  plaintiffs  allegations  that  are  well  pleaded  to 
be  true,  that  the  plaintiff  is  not  entitled  to  the  relief  prayed 
for,  a  demurrer  will  be  sustained.  If  the  complainant  has 
failed  to  set  forth  the  requisites  which  entitled  him  to  specific 
performance  the  bill  would  be  defective  and  defendant  could 
sustain  a  demurrer.  In  some  cases  defendant  must  file  a  de- 
murrer in  order  to  take  advantage  of  certain  defects;  as,  for 

1  Bates  V.  Wheeler,  2  111.  54.  it  is  filed  merely  for  compensation. 

2 Duff  V.  Fisher,  15  Cal.  375;  Burns  The  court  say:    "It  prays  compensa- 

V.  Fox,  113  Ind.  205.  tion  only  as  alternative  relief,  and 

3InFarwell  v.  Johnson,  34  Mich,  this  is  proper;  it  prays  specific  per- 

342,  344,  it  was  held  that  a  bill  filed  formance  as  the  primary  remedy." 

primarily   for  specific  performance  Copper  v.  Weils,  1  N.  J.  Eq.  16,  and 

and  for  compensation  as  an  alter-  the    cases  cited;  Wiley  v.  Mullens, 

native  relief  merely  is  not  subject  22  Ark.  394. 
to  demurrer  upon  the  ground  that 


§  436.]  SPECIFIC    PERFORMANCE.  671 

example,  that  the  allegation  is  not  sufficiently  full  and  partic- 
ular; that  it  is  too  general.^ 

Plea.  Defenses  that  are  properly  met  by  plea  may  be 
invoked  in  actions  for  specific  performance;  the  usual  and 
general  rules  as  to  pleas  applying. 

Answer  and  cross-Mil.  If  it  is  desired  to  traverse  the  allega- 
tions of  the  complaint  or  show  facts  in  avoidance  of  them,  or 
set  up  new  matter  explaining  the  facts  alleged  in  the  com- 
plaint, it  should  be  by  answer.  If  new  and  substantive  matter 
is  relied  upon,  and  defendant,  because  of  it,  seeks  substantive 
relief,  it  would  be  necessary  for  him  to  file  a  cross-bill,  or  an 
answer  in  the  nature  of  a  cross-bill,  where  the  rules  of  prac- 
tice provide  for  it.  The  cross-bill  must  be  based  upon  matter 
of  equitable  cognizance  with  sufficient  allegations  to  support 
the  relief  sought. 

§  436.  The  decree. —  The  decree  of  the  court,  governed  as 
it  is  by  a  sound  legal  discretion,  is  sufficiently  flexible  to  meet 
the  circumstances  and  facts  in  each  particular  case.''  The 
court  may  refuse  its  aid,  dismiss  the  plaintiff's  bill,  and  send 
him  to  the  law  court  to  recover  damages.  It  may  grant 
specific  performance  of  the  contract,  and  in  such  case  the 
endeavor  will  be  by  the  decree  of  the  court  to  place  the 
parties  in  the  same  situation  that  they  would  have  occupied 
if  the  contract  had  been  performed  according  to  its  terms. 
Where  entire  specific  performance  is  impracticable,  but  partial 
performance  in  specie  is  equitable  and  just,  with  an  amount  by 
way  of  damages  for  the  failure  of  the  defendant  to  perform, 
the  court  will  so  decree;  or  a  decree  may  be  entered  refus- 
ing specific  performance  of  the  contract  and  awarding  dam- 
ages as  compensation  for  its  breach.     The  jurisdiction  of  the 

1  In  Ramsey  v.  Listen,  25  IlL  114,  tion  of  the  defendant  by  decreeing 
it  was  held  that  a  defect  in  not  par-  the  payment  of  certain  repairs  on 
ticularly  stating  the  consideration  the  premises  provided  by  tlie  con- 
fer the  contract  cannot  be  taken  tract.  And  in  Strauss  v.  Bendheim, 
advantage  of  at  the  hearing;  that  it  66  N.  Y.  S.  247,  an  order  directing  sale 
could  be  raised,  if  at  all,  only  on  de-  of  the  premises  in  case  of  the  ina- 
murrer.  bility  of  the  defendant  to  pay  the 

-  In   Mead   v.  Martens,   162  N,  Y.  contract  price  with  costs  was  held 

636,  57  N.  E.  1117,  it  was  held  that  correct.    Ryon  v.  Loveless  (N.  J.  Eq., 

the  court  in  its  sound  discretion  is  1902),  51  Atl.  1094;  Kent  v.  Dean,  128 

warranted,    where    performance    is  Ala.  600,  30  So.  543;  Melick  v.  Cross 

decreed,  in  providing  for  the  protec-  (N.  J.  Eq.,  1902),  51  AtL  16. 


672  ENFORCEMENT    OF    TRUSTS.  [§  437. 

court  is  broad  and  always  sufficient  to  do  justice  and  give  full 
relief;  having  assumed  jurisdiction  it  will  settle  the  whole 
controversy  between  the  parties.* 

II.  Actions  for  the  Declaration  and  Enforcement  of 
Trusts  and  Obligations  Arising  from  Fiduciary  Rela- 
tions. 

§437.  Trusts  —  Nature  of,  and  definition. —  Trusts  are 
relations  which  spring  from  confidential  or  fiduciary  relations, 
or  from  confidence  reposed  in  a  person  in  dealing  with  prop- 
erty, real  or  personal,  for  the  benefit  of  another.  The  parties 
to  a  trust  are  the  settlor,  the  one  who  transfers  the  property 
to  the  trustee  and  the  person  who  creates  the  trust;  the  trustee, 
the  person  to  whom  it  is  conveyed;  and  the  cestui  que  trust  or 
beneficiary,  the  person  for  whose  benefit  the  conveyance  or 
transfer  is  made.  The  beneficial  interest  is  described  in  Judge 
Story's  definition:  "An  equitable  right,  title  or  interest  in 
property,  real  or  personal,  distinct  from  the  legal  ownership 
thereof."^  It  is  said  "a  trust  exists  where  the  legal  interest 
is  in  one  person  and  the  equitable  interest  in  another." ' 

Judge  Owen,  in  Mannix  v.  Purcell,^  said :  "  A  trust  is  where 
property  is  conferred  upon  and  accepted  by  one  person  on  the 
terms  of  holding,  using  or  disposing  of  it  for  the  benefit  of 

1  Where  a  purchaser,  refused  ac-  mium  by  the  plaintiff  to  the  defend- 
cording  to  the  stipulations  of  the  ants,  and  the  omission  of  the  latter 
sale,  to  execute  a  bond  and  mort-  to  execute  a  policy  of  insurance  con- 
gage,  obtaining  possession  on  pay-  formable  to  the  agreement,  being 
ment  of  a  portion  of  the  price,  it  requested  so  to  do,  was  set  forth  in 
was  held  the  court  could  decree  a  the  bill;  the  loss  of  the  premises  was 
sale  of  the  property  to  satisfy  the  also  stated.  The  prayer  was  for  the 
unpaid  balance,  for  the  reason  that  payment  of  the  loss  and  for  general 
such  balance  should  equitably  be  a  relief.  The  case  was  heard  on  de- 
lien  on  the  pi'operty,  and  the  party  murrer;  the  court  found  that  it  had 
should  be  compelled  to  carry  out  his  jurisdiction  to  enfoi'ce  the  agree- 
agreement  to  execute  a  bond  and  ment  to  insure  and  to  compel  the 
mortgage.  Peake  v.  Young,  40  S.  C.  execution  of  a  policy,  and  if  loss  had 
41;  Brace  v.  Doble,  3  S.  Dak.  110.  occurred  that  it  might  decree  its 
In  Carpenter  v.  Mutual  Life  Ins.  Co.,  payment.  Grubb  v.  Starkey,  99  Va. 
4  Sandf.  Ch.  (N.  Y.)  408,  an  agree-  831. 

ment    for    insurance  made   by  the  2  o  Story,  Eq.  Jur.,  sec.  964. 

authorized  agent  of  the  defendant,  3  Wallace   v.   Wainwright,  87  Pa. 

the  terms  of  which  were  fully  stated,  St.  268. 

the  payment  of  the  stipulated  pre-  *  46  Ohio  St.  102, 15  Am.  St.  Rep.  563» 


§  438.]  ENFORCEMENT    OF   TRUSTS.  673 

another."  It  is  the  existing  relation  that  is  the  basis  of  the  action 
in  equity.  Equit}^  does  not  create,  but  defines,  determines  and 
enforces  the  relation  which  has  been  already  created.  Itsliould 
be  continually  borne  in  mind  that  the  settlor,  or  person  who 
transfers  the  property,  transfers  to  the  trustee  the  legal  title 
and  to  the  bc-neficiary  the  equitable  title.  It  therefore  follows 
that  any  person  sui  juris  who  can  legally  hold  and  dispose  of 
the  legal  or  equitable  estate  or  interest  in  property  may  create 
a  trust.'  A  trustee  may  be  any  person  capable  of  taking  and 
holding  the  legal  estate,  and  the  cestui  que  trust  a  person  ca- 
pable of  taking  the  equitable  title  through  the  medium  of  a 
trustee.  It  is  a  rule  of  equity  which  has  become  a  maxim 
"  that  equity  never  wants  a  trustee." 

If  a  trust  is  one  properly  created,  it  cannot  be  defeated  be- 
cause of  disability,  death,  or  incompetency  of  the  person  named 
as  trustee.  Equity  will  decree  the  execution  of  the  trust  by 
other  legal  mediums.  The  property  will  be  followed  into 
whatever  hands  it  may  come;  the  person  receiving  it  will  be 
charged  with  the  execution  of  the  trust,  except  in  cases  where 
he  is  a  purchaser  without  notice.  So  where  several  persons 
were  named  as  trustees  and  one  of  them  refused  to  accept  and 
execute  the  trust,  it  was  held  that  the  whole  estate  vested  in 
the  others,  who  might  act  in  the  same  manner  as  if  he  were 
dead.  And  where  lands  were  devised  to  trustees  and  all  the 
devisees  declined  the  trust,  it  was  said  that  "  there  the  legal 
estate  must  of  necessity  vest  in  the  devisees,  for  the  benefit 
of  the  cestui  que  trust,  who  is  the  real  object  of  the  testator's 
bounty,  if  the  trust  itself  is  legal;  and  they  cannot  wholly  de- 
feat the  intention  of  the  testator  by  a  refusal  to  accept  the 
trust.  But  in  that  case,  although  the  legal  estate  nominally 
vests  in  the  trustees  designated  by  the  testator,  yet,  as 
he  cannot  compel  them  to  act  against  their  wills,  the  exe- 
cution of  the  trust  necessarily  devolves  upon  the  court  of  chan- 
cery." '•' 

§  438.  Creation  or  declaration  of  trust.— By  way  of  con- 
sidering their  creation  and  declaration,  trusts  may  be  divided 

1 1  Perry  on  Trusts,  28.  Irvine   v.    Dunham.    Ill   U.   S.  327; 

2King  V.    Donnelly,   5  Paige   Ch.  Scott  v.  Rand,  118  Mass.  215;  Meet- 

(N.  Y.) 46;  Cushney  V.  Henry,  4  Paige  ing.   etc.    Soc.   v.    Hail,  8  R.  I.  234; 

Ch.  345;  Treat's  Appeal,  30 Conn.  113;  Nash  v.  Cutler,  19  Pick.  (Mass.)  67. 
43 


67i  ENFORCEMENT  OF  TRUSTS.  [§  43 S. 

into  express  or  implied  trusts;  the  express  trust  may  be  volua- 
tary  — that  is,  without  consideration,  or  for  a  good  or  valuable 
consideration.  The  declaration  of  a  trust  may  be  clearly  ex- 
pressed in  writing  by  the  instrument  creating  it,  or  implied 
by  parol  statement  or  actions  and  statements  from  which  the 
court  will  determine  its  existence.  The  court  of  equity  will  not 
create  a  trust  nor  will  it  decree  a  declaration  of  trust;  it  will  only 
determine  the  existence  of  the  latter  from  facts  existing  and 
proven,  and  from  the  same  source  determine  whether  there 
has  been  a  declaration  of  the  trust. 

Where  one  devised  all  her  property,  both  real  and  personal, 
consisting  of  a  certain  farm  on  which  she  and  her  son  lived,  in 
trust  to  her  executor,  to  receive  the  rents  and  profits  thereof, 
and  to  apply  them  to  the  use  of  her  son  during  his  natural  life, 
with  remainder  to  her  pastor  and  friend,  whom  she  had  made 
executor  of  her  will,  and  afterwards  executed  and  delivered  to 
her  said  executor  a  warranty  deed  of  her  farm  for  the  considera- 
tion expressed  in  the  deed  of  one  dollar  and  other  valuable  con- 
sideration to  her  duly  paid,  which  deed  was  duly  executed,  the 
grantor  having  died,  the  executor  or  grantee  in  the  deed  exe- 
cuted an  instrument  and  put  it  upon  record,  reciting  that  be- 
cause of  certain  real  estate  conveyed  to  him  by  the  said  deed 
he  considered  himself,  his  heirs,  executors  and  administrators 
holden  and  firmly  bound  to  appropriate  or  cause  to  be  appro- 
priated for  the  comfortable  support  of  the  said  son  of  his  grantor 
during  his  life  all  the  rents,  after  deducting  necessary  expenses 
of  said  real  estate,  and,  if  it  should  be  sold,  the  proper  main- 
tenance in  board  and  clothing  for  the  said  son  should  be  a 
first  lien  upon  said  real  estate  during  his  life,  reciting  that  the 
obligation  was  limited  to  the  rents  and  profits  of  said  real  es- 
tate, and,  if  sold,  to  the  interest  on  the  purchase-money,  the 
farm  being  afterwards  sold  and  then  rented,  the  support  was 
refused  and  an  action  was  brought;  the  court  held  that  a 
certain  amount  determined  by  the  court  should  be  paid  for  the 
support  of  the  son;  that  the  amount  should  be  a  lien  upon  the 
land  to  secure  its  payment,  and,  in  case  there  should  be  a  de- 
ficiency on  the  sale  of  the  land  to  meet  the  charges,  that  such 
deficiency  should  be  adjudged  to  b^  paid  by  the  grantee  of  the 
person  to  whom  the  land  was  first  conveyed,  and,  in  case  of 


§  438.] 


ENFORCEMENT   OP   TRUSTS. 


675 


his  inability  to  pay,  then  by  the  said  first  grantee,  the  executor 
in  the  will  who  accepted  the  trust.^ 

In  Loring  v.  Palmer,^  where  a  series  of  letters  and  agree- 
ments passed  between  the  parties  interested  in  relation  to  the 
property,  which,  read  together,  showed  an  intention  to  create 
a  trust  respecting  the  property  involved,  and  which  defined 
the  trusts  and  the  parties'  interests  respectively,  it  was  held 
that  a  trust  would  be  decreed.  The  court  say:  "If  upon  the 
face  of  these  writings  thus  read  and  construed  together  in  the 
light  of  the  circumstances  which  surrounded  the  parties  at 
the  time  a  trust  is  fully  expressed  and  clearly  defined,  .  .  . 
then  his  case  has  been  made  out  so  far  as  the  creation  of  the 
trust  is  concerned." 


1  McArthur  v.  Gordon  et  al.,  126 
N.  Y.  597,  13  L.  R.  A.  667.     And  see 
briefs  of  counsel  and  editor's  notes. 
Loose    and    indefinite    expressions 
which  indicate  merely  incomplete  or 
executory  intention  is  not  sufficient 
to  create  a  trust.  Kobarg  v.  Greeder, 
51  Neb.  363,  70  N.  W.  921;  Orth  v. 
Orth,  145  Ind.  206,  33  L.  R.  A.  298,  44 
N.  E.  17;  Miller  v.  Cramer.  48  S.  C. 
282,  26  S.  E,  657;  Trustee  v.  Hunt- 
ing   (C.    A.,    1897),    2    Q.    B.    19.    66 
L.   J.  Q.   B.   (N.  S.)  76.     No   partic- 
ular express  words  are  necessary  to 
create  a  trust.     If  upon  the  face  of 
the  instrument  the  intention  is  clear 
and  apparent,  it  is  enough.     Dean  v. 
Mumford,  102  Mich.  510;  Packard  v. 
Kingman,  109  Mich.  497;  Lee  v.  Enos, 
97  Mich.  276;  Milholland  v.  Whalen, 
89  Md.  213,  44  L.  R  A.  205. 

Implied  or  constructive  trusts: 
Johnstone  v.  O'Connor,  47  N.  Y.  S, 
425;  Godkin  v.  Cohn,  25  C.  C.  A.  557, 
80  Fed.  458;  Widdecombev.  Childers, 
134  U.  &  400;  Alkire,  etc.  Co.  v.  Bal- 
lenger,  137  Mo.  369,  38  S.  W.  911. 
Where  one  fraudulently  procured  a 
deed  by  the  false  repre.sentation  that 
it  was  for  the  protection  of  a  grantee 
in  a  prior  unrecorded  deed  from  the 
same  grantor,  it  was  held  that  the 
deed  would  not  invest  him  with  any 


title  as  against  the  prior  grantee  for 
whose  benefit  the  grantor  meant  it, 
but  that  the  fraudulent  grantee  is  a 
mere  trustee  for  the  other.  Harold 
V.  Bacon,  36  Mich.  1;  Loomis  v.  Rob- 
erts, 57  Mich.  284;  Cicotte  v.  Steb- 
bins,  49  Mich.  631. 

Resulting  trusts:  Wolf  v.  Citizens' 
Bank  (Tenn.  Ch.,  1897),  43  S.  W.  39; 
Moore  v.  Moore,  74  Miss.  59,  19  So. 
953.  In  Waterman  v.  Seeley,  28 
Mich.  77,  80,  it  was  said  that  result- 
ing trusts  "are  not,  however,  in 
harmony  with  our  land  system,  and 
our  courts  have  never  been  disposed 
to  extend  them  beyond  the  line  of 
authority.  In  order  to  maintain 
such  a  trust,  there  must  have  been 
an  intention  to  create  it,  and  there 
must  have  been  an  actual  payment 
of  the  consideration,  made  out  be- 
yond any  doubt  to  have  been  the  in- 
dividual money  of  the  party  seeking 
to  raise  the  trust.  Proof  of  such 
payment  will  usually,  as  between 
•strangers,  raise  a  presumption  in 
favor  of  such  an  intention,  but  even 
then  the  trust  raised  by  parol  may 
be  rebutted  by  parol."  Reynolds  v. 
Sumner,  120  111.  58,  1  L.  R.  A.  327. 

2 118  U.  S.  321,  340;  Barber  v.  Mil- 
ner,  43  Mich.  248;  Loud  v.  Win- 
chester, 53  Mich.  174. 


676  ENFORCEMENT    OF   TRUSTS.  [§  439. 

§430.  Equitable  remedies  —  rDJceclure. —  For  the  con- 
struction and  enforcement  of  the  several  kinds  of  trusts,  the 
court  of  equity  is  invested  with  peculiar  power.  Its  jurisdic- 
tion is  invoked  to  enforce  trusts  whether  private  or  charitable, 
to  enforce  trusts  involving  the  conveyance  of  lands,  construct- 
ive or  resulting  trusts,  to  deterinine  and  enforce  trusts  arising 
from  fiduciary  relations,  as  in  the  case  of  adminstrators  or 
executors,  to  grant  relief  in  actions  against  corporations,  to 
compel  the  transfer  or  issuance  of  stock,  and  generally  to  de- 
termine whether  from  the  contract  relations  or  agreements  of 
parties,  or  from  their  dealings,  a  trust  has  been  created,  and  to 
give  to  the  parties  their  rightful  and  equitable  relief.  It  has 
been  said  that  "the  whole  subject  of  trusts  is  one  of  equitable 
jurisdiction  well  defined,  and  the  general  practice  under  the 
various  branches  has  been  of  long  standing  both  in  England 
and  this  country,  and  has  become  a  part  of  the  remedy  itself, 
and  no  departure  therefrom  can  be  had  except  authorized  by 
statute  or  by  the  rules  of  court  clearly  making  the  change."  ' 

Where  a  testator  bequeathed  his  personal  property  to  a 
trustee,  providing  that  the  income  and  balance  of  said  personal 
property  and  so  much  of  the  principal  as  may  be  necessary 
were  to  be  used  for  the  proper  care  and  education  of  his  son, 
who,  when  he  arrived  at  the  age  of  majority,  was  to  have  the 
balance  of  the  personal  property,  and,  if  competent,  the  com- 
plete ownership  and  control  of  certain  real  estate  left  by  the 
testator  subject  to  certain  interests  named,  it  was  held  in  an 
action  at  law  brought  against  the  trustee  for  the  support  fur- 
nished the  son  that  there  could  be  no  recovery.  The  court 
say:  "If  the  defendant  held  as  trustee,  funds  chargeable  with 
the  support  of  the  testator's  child,  the  plaintiff  could  not  main- 
tain this  action  at  law.  Her  remedy,  if  any  she  has,  is  in 
equity.     Enforcement  of  trusts  is,  of  necessity,  within  the  ju- 

1  liedyard's  Appeal,  51  Mich.  633,  tied  and  it  remains  only  to  pay  over 
625;  Congdon  v.  Gaboon,  48  Vt.  49;  and  ascertain  balance.  Davis  v.  Co- 
Van  Houten  v.  McKelway,  17  N.J.  Eq.  burn,  128  Mass.  377,  380;  Mo.  etc. 
126;  Manhattan  Bank  v.  Walker,  ViO  Co.  v.  Guymon,  115  Fed.  112;  Owens 
U.  S.  267;  Coats  v.  Woodworth,  13  v.  Williams,  130  N.  C.  165,  41  S.  E. 
111.  654;  Douglass  v.  Martin,  103  111.  93;  City  of  Seattle  v.  McDonald,  26 
25.  Ordinarily  no  action  at  law  to  Wash.  98,  66  Pac.  145;  Hutchinson 
recover  a  trust  fund  lies  against  a  v.  Leroy,  113  Fed.  202;  Crumrine  v. 
trustee  till  the  action  has  been  set-  Crumrine,  50  W.  Va.  226,  40  S.  E.  341. 


§  440.] 


ENFOKCEMENT    OF   TKU8T3. 


67( 


risdiction  of  courts  of  equity.  An  action  at  law  is  not  main- 
tainable between  a  trustee  and  cestui  que  trust  in  matters  aris- 
ing out  of  the  trust.  An  action  at  law  does  not  lie  against  a 
trustee  to  recover  a  trust  fund  or  any  part  thereof  so  long  as 
the  trust  remains  open."  ^ 

§  440.  Equity  will  follow  the  trust  property.— Property 
once  impressed  with  a  trust  becomes  the  special  object  of  the 
court  of  equity,  and  it  will  follow  the  property  into  whosoever 
hands  it  may  come  with  notice  of  the  trust,  and  by  its  order 
and  decree  appropriate  it  to  the  uses  of  the  trust;  the  only  ex- 
ception being  where  the  property  has  come  into  the  hands  of  a 
lonafide  purchaser  having  no  notice  of  the  trust. 


1  Herrick  v.  Snow,  94  Me.  310.  313, 
47  Atl.  540.     In  Clews  v.  Jamieson, 
183  U.  S.  461,  479,  a  case  where  com- 
plainants sought  a  recovery  because 
of  certain   money   intrusted   to  de- 
fendants to  invest  in  stock,  the  de- 
fense being  that  there  was  a  com- 
plete and  adequate  remedy  at  law, 
the  court  say:     "'All  possible  trusts, 
whether  expressed   or  implied,  are 
within  the  jurisdiction  of  the  chan" 
cellor.     In  this  case   the  committee 
as  trustee  was  charged  with  the  per- 
formance  of  some  active  and  sub- 
stantial duty  in  respect  to  the  man- 
agement and  payment  of  the  funds 
in  its  hand,  and  it  was  its  duty  to 
see  that  the  objects  of  its  creation 
were   properly  accomplished.      The 
fact  that  the  relief  demanded  is  a 
recovery  of  money  only  is  not  im- 
portant in  deciding  the  question  as 
to  the  jurisdiction  of  equity.     The 
remedies  which  such  a  court  may 
give  depend  upon  the  nature  and  ob- 
ject of  the  trust;  sometimes  they  are 
specific  in  their  character  and  of  a 
kind  which  the  law  courts  cannot 
administer,  but  often  they  are  of  the 
same  general  kind  as  those  obtained 
in  legal  actions,  being  mere  recoveries 
of  money.     A  court  of  equity  will 
always,   by  its   decree,  declare  the 
rights,  interests  or  estate  of  the  ces- 
tui que  trust,  and  will  compel  the 


trustee  to  do  all  the  specific  acts  re- 
quired of  him  by  the  terms  of  the 
trust.     It    often    happens  that   the 
final  relief  to  be  obtained  by  t!ie  ces- 
tui que  trust  consists  in  the  recovery 
of  money.     This  remedy  the  courts 
of  equity  will  always  decree  when 
necessary,  whether  it  is  confined  to 
the  payment  of  a  single  specific  sum 
or  involves  an  accounting   by  the 
trustee  for  all  that  he  has  done  in 
pursuance  of  the  trust  and  a  distri- 
bution of  the  trust  moneys  among 
all  the  beneficiaries  whoara  entitled 
to  share  therein.  1  Pom.  Eq.  Jur.,  sec. 
158.     In  cases  where  the  equity  doc- 
trine of  trusts  has  been  extended  so 
as  to  embrace  other  relations  of  a 
fiduciary  kind,  while  it  may  not  be 
said  that  a  court  of  equity  possesses, 
exclusive  jurisdiction,  yet  it  is  well 
settled  that  in  such  case  there  is  so 
much  of  the  trust  character  between 
the  parties  so  situated  that  the  juris- 
diction of  equity,  though  not  exclu- 
sive, is  acknowledged.  1  Pom.  Eq.  Jur. 
sec.  157."     Marvin  v.  Brooks,  94  N.  Y. 
71.    In  Oelrichs  v.  Spain,  15  Wall.  (U. 
S.)  211,  228,  it  was  held  that,  where 
there  is  an  element  of  trust  in  the 
case,  that  element,  wherever  it  ex- 
ists, always   confers  jurisdiction  in 
equity.     Hailinan  v.  Hearst,  1.33  Cal. 
645, 


678  ENFORCEMENT   OF   TRUSTS.  i.§  440. 

Where  a  testator  devised  a  certain  portion  of  bis  estate  to 
appellant  and  the  remainder  over  to  some    of  the  testator's 
children  in  equal  shares,  including  appellant,  upon  the  death 
of  his  widow,  and  one  of  his  executors,  to  whom  letters  testa- 
mentary issued,  took  entire  control  and  management  of  dece- 
dent's estate  and  afterwards  invested  a  large  amount  of  the 
funds  in  his  business,  a  certain  share  of  the  business  having 
afterwards   been  purchased  by  another,  and    afterwards  the 
business  incorporated,  a  bill  was  filed  for  an  accounting  as  to 
these  certain  trust  funds.     The  court,  after  finding  that  there 
was  a  trust  created  by  the  will  and  that  the  case  presented  one 
for  the  interposition  of  the  court  of  chancery,  quoting  from 
Perry  on  Trusts,  say :  "  If  a  person  having  a  fiduciary  character 
purchases  property  with  the  fiduciary  funds  in  his  hands  and 
takes  the  title  in  his  own  name,  a  trust  in  the  property  will 
result  to  the  cestui  que  trusty  or  other  person  entitled  to  the 
beneficiary  interest  in  the  fund  with  which  the  property  was 
paid  for.     .     .     .     'If  an  executor  or  administrator  purchased 
property  in  his  own  name  with  money  belonging  to  the  estate, 
a  trust  in  the  property  will  result  to  the  heirs,  legatees  or  other 
persons  entitled  to  the  beneficial  interest  in  the  estate.'     .     .     . 
The  trust  property  may  be  followed  in  equity  by  the  cestui  que 
trust  into  whosoever  hands  it  may  come  with  notice  of  the 
trust."'     And  where  one  who  was  entitled  to  an  interest  in 
certain  shares  of  stock  as  a  distributee  of  an  estate  by  power 
of  attorney  authorized  a  co-owner  to  manage  these  shares  as 
well  as  other  property  for  the  benefit  and  convenience  of  all 
the  owners,  and  this  agent  thus  authorized  caused  the  shares 
to  be  put  into  his  own  name  and  pledged  them  as  security  for 
a  personal  loan  to  himself,  and  afterwards  made  a  deed  of  trust 
to  the  defendant  for  the  benefit  of  his  creditors,  the  defendant 
paying  off  the  loan  and  the  shares  of  stock,  it  was  held  that 
"  this  property,  therefore,  however  much  it  might  be  altered  or 
changed  in  its  nature  or  character,  and  all  the  fruits  thereof, 
whether  in  its  original  or  altered  state,  was  subject  to  a  trust, 
as  between  the  agent  or  trustee  and  all  parties  claiming  under 
him,  otherwise  than  by  purchase  for  a  valuable  consideration 

1  Graham  v.  Graham,  85  111.  App.  604;  Bundy  v.  Town  of  Montecello, 
460.  46'3;  Tyler  v.  Daniel,  65  111.  316;  84  Ind.  129;  Alien  v.  Russell,  78  Ky. 
Stephenson  v.   McClintock,  141   111.     105,  113. 


Q  441,]  ENFORCEMENT    OF    TRUSTS.  ^'^^ 

Without  notice,  and  the  owners  thereof,  and  as  long  as  the  same 
could  be  traced  and  identified,  the  owners  as  between  them- 
selves and  all  such  parties  will  receive  the  aid  of  a  court  of 
equity  to  protect  them  against  the  consequences  of  a  wrongful 
conversion."^     And  it  is  generally  held  that  "those  who  re- 
ceive trust  property  from  a  trustee  in  breach  of  his  trust  be- 
come themselves  trustees  thereof,  if  they  have  notice  of  the 
trust.    So  where  a  trust  fund  is  employed  to  purchase  in  whole 
or  in  part  a  particular  piece  of  property,  so  long  as  the  trust 
fund  can  be  identified,  it  may  be  followed  into  the  hands  of 
any  one  purchasing  with  notice,  as  he  has  made  himself  an 
accomplice  in  the  original  wrongful  act.     The  property  which 
has  been  substituted  for  the  fund  is  itself  impressed  with  the 
trust  originally  imposed  upon  the  fund,  but  it  is  necessary  that 
such  property  "should  be  pointed  out  and  identified."  ^ 

§  441,  Pleadings  and  procedure  in  enforcement  of  trusts. 
As  a  general  rule  the  trustee  or  cestui  que  trust  can  maintain 
an  action  for  the  enforcement  of  the  trust.     The  trustee  is  the 
proper  party,  and  when  he  is  willing  and  can  prosecute  the 
action  he  is  the  only  proper  party;  the  cestui  que  trust  may  sue 
in  his  own  name  if  there  are  reasons  why  the  trustee  should 
not  bring  the  action;  as,  for  example,  where  the  trustee  has 
an  adverse  interest,  and  presumably  where  the  trustee  refuses 
to  protect  the  interest  of  the  cestui  que  trust;  but  generally  the 
cestui  que  trust  should  only  bring  an  action  to  enforce  the  trust 
in  the  name  of  the  trustee.'    But  it  has  been  held  that  an 
action  may  be  maintained  by  any  person  interested  in  its  en- 
forcement.*   All  persons  who  are  interested  or  whom  the  decree 
may  affect  are  necessary  parties,  the  rule  in  this  respect  being 
the  same  as  the  general  rule  that  obtains  in  chancery  cases. 
One  having  a  mere  possibility  of  interest  need  not  be  made  a 

1  Woodside  v.  Grafflin,  91  Md.  422,  that  where  an  express  trust  is  to  be 
427-  En-lar  v.  Offutt,  Trustee.  70  enforced  the  trustee  should  bring  the 
Md'  78-  Duckett  v.  Bank,  88  Md.  8;  action  in  his  own  name.  Winters  v. 
Blair  V  Hill  165  N.  Y.  672;  Flaherty  Rush.  34  Cal.  136;  Webb  v.  Vt.  etc. 
V  Cramer  62  N.  J.  Eq.  758,  48  Atl.  Ry.  Co..  9  Fed.  793;  Wolcott  v.  Stand- 
565-  Howard  v.  Fay,  138  Mass.  104.  ley,  62  Ind.  198;  Kirkpatrick  v.  Clark. 

2  Howard   v.    Fay,  138  Mass.    104,  132  111.  342;  Ryan  v.  Bibb,  46  Ala. 


323. 

-iu  v..c..^   ..  ^ -        *^ 

12' 16  Am.  St  Repr733,'  it  was  held    Garrison  v.  Little,  75  111.  App.  402. 


105 

sin  Clark  v.  Fosdick,  118  N.  Y.  7,        *Goncelier  v.  Foret,  4  Minn.   13; 


C80  ENFORCEMENT    OF   TKUSTS.  [§  442i 

party  ;^  but  where  it  is  evident  that  the  decree  of  the  court 
would  affect  the  interests  of  a  party,  he  should  be  made  party 
to  the  suit;  if  the  property  be  real  estate  and  the  beneficiary  be 
dead,  his  heirs  should  be  made  parties;  if  it  be  personalty,  then 
his  personal  representatives  are  the  proper  parties  complainant.- 
§  4:42.  The  bill  of  complaint.— The  general  principles  of 
equity  pleading  are  applicable  in  drafting  the  bill  of  complaint 
in  this  class  of  cases.  The  bill  must  show  that  the  court  has 
jurisdiction  of  the  cause,  and  if  the  action  is  commenced  by 
the  trustee  he  must,  by  sufficient  allegations  of  fact,  show  that 
jae  is  the  trustee.  If  the  jurisdiction  is  invoked  by  a  cestui  que 
trust  there  should  be  allegations  in  the  complaint  showing  that 
he  is  the  proper  party  to  bring  the  action,  as,  for  example,  that 
the  trustee  had  refused  to  protect  the  interest  by  bringing  the 
action,  or  that  he  has  an  adverse  interest  in  the  particular  suit 
brought,  or  some  other  valid  reason  why  the  action  is  brought 
in  the  name  of  the  cestui  que  trust  and  not  in  the  name  of  the 
trustee.'  All  persons  who  are  interested  in  the  subject-matter 
of  the  suit,  and  whom  the  decree  of  the  court  would  affect, 
should  be  made  parties  to  the  bill  of  complaint.  The  property 
which  is  sought  to  be  affected  by  the  action  must  be  described 
in  the  bill  of  complaint  with  certainty,  and  by  proper  allega- 
tions identified  with  the  trust  in  (juestion.  This  is  especially 
necessary  where  by  the  action  it  is  sought  to  follow  the  funds 
or  property  into  the  hands  of  persons  who  have  wrongfully 
purchased  or  received  it  from  the  trustee,  for  it  is  said  that  if 
they  know  the  trustee  to  be  unfaithful  they  cannot  be  held  to 
be  trustees  of  the  property  which  cannot  be  connected  with  the 
trust  fund.  And  it  has  been  held  that  where  one  knows  that 
a  purchase  is  made  from  him  with  the  specific  funds  of  an  es- 
tate wrongfull}'-  misappropriated,  but  receives  such  funds  not 
as  distinct  funds  and  with  no  knowledge  that  would  identify 
it  as  forming  a  part  of  a  trust  fund,  a  general  knowledge  that 
the  party  paying  wrongfully  used  trust  funds  would  not  render 
him  thus  responsible  as  a  trustee.* 

1  Female    Ass'n    v.   Beakman,    21  ^Do^gett   v.   Hart,  5   Fla.  215,  58 

Barb.  (N.  Y.)  567.  Am.  Dec.  464;  Webb  v.  Vermont,  etc. 

^Holland  v.  Cruft,  20  Pick.  (Mass.)  Ry.  Co.,  9  Fed.  793. 

321;  James  V.  Throckmorton,  57  Cal.  *  Trull  v.  Trull,   13  Allen  (Mass.), 

368;  Craig  v.  Jennings,  31  Ohio  St.  84.  407, 


R  442.  J  ENFORCEMENT   OF   TRUSTS.  ^^l 

The  bill  of  complaint  must  by  suITicient  allegations  set  forth 
every  fact  necessary  to  warrant  the  decree  prayed  for;  and 
such  allegations  should  be  made  in  the  stating  part  of  the  bill, 
for  it  is  in  the  stating  part  that  the  court  will  look  to  determine 
whether  a  case  is  made  by  the  complainant,  as  no  other  part 
of  the  bill  will  supply  defects  found  in  the  stating  part.^     The 
complainant  must  carefully  and  with  certainty  allege  the  ex- 
istence of  the  trust  relied  upon  by  stating  the  facts  and  cir- 
cumstances which  create  it  and  the  terms  and  existence  of  the 
trust.     It  will  not  be  sufficient  to  state  conclusions;  the  de- 
fendant is  entitled  to  the  averments  and  facts  depended  upon 
that  he  may  traverse  or  admit  them  as  he  desires  in  making 
his  defense,  and  the  court  will  require  them  in  order  to  be  able 
to  determine  whether  the  relief  asked  for  can  be  granted.    The 
complainant  in  stating  the  case  must  show  that  there  was  a 
trustee  and  cestui  que  trust.     And  where  the  allegation  was 
that  a  Catholic  bishop  held  certain  property  in  trust  for  his 
diocese,  but  failed  to  show  either  a  trustee  or  a  beneficiary,  it 
was  held  that  the  complaint  was  not  sufficient.^    The  prayer 
for  relief  is  special  and  asks  for  the  particular  relief  sought 
for  in  filing  the  bill.     But  in  these  cases  a  prayer  for  general 

1  In  Wright  v.  Dame,  22  Pick,  terest  in  a  farm,  and  to  compel  the 
(Mass.)  5o,  59,  it  was  said:  "The  rules  defendant  to  execute  his  trust  and 
of  pleading  require  that  every  ma-  close  the  same  by  conveying  the 
fceria!  averment  that  is  necessary  to  farm  in  equal  shares  to  complamant 
entitle  the  plaintiff  to  the  relief  and  her  daughter.  The  bill  of  corn- 
prayed  for  must  be  contained  in  the  plaint  is  set  forth  and  upon  demur- 
stating  part  of  the  bill;  and  this  is  a  rer  the  court  finds  the  bill  sufficient, 
useful  rule  for  the  preservation  of  Chadwick  v.  Chad  wick,  59  Mich.  87; 
form  and  order  in  the  pleadings.  Booth  v.  Savings  Bank,  123  Cal.  19, 
This  part  of  the  bill  must  contain  54  Pac.  370;  Orb  v.  Coapstick,  136  Ind. 
the  plaintiflf's  case,  and  his  title  to  313;  Dow  v.  Jewell,  18  N.  H.  340; 
relief:  and  every  necessary  fact  must  Long  v.  King,  117  Ala.  423;  Nichols 
be  distmctly  and  expressly  averred,  v.  Rogers,  139  Mass.  146. 
and  not  in  a  loose  and  indeterminate  «  Katzer  v.  Milwaukee,  104  Wis.  16; 
manner,  to  be  explained  by  infer-  Dow  v.  Jewell,  18  N.  H.  340.  Where 
ence,  or  by  reference  to  other  parts  there  were  no  averments  of  any  re- 
of  the  bill.  The  defendants  are  not  suiting  trusts  and  no  such  relief  was 
bound  to  answer  any  averment  not  asked  for,  the  court  held  that  it 
contained  in  the  stating  part  of  the  could  not  grant  it.  Davis  v.  McCul- 
bill."  In  Weaver  v.  Van  Akin,  77  lough,  193  III.  277,  61  N.  E.  377;  Mc- 
Mioh.  588,  where  by  bill  it  is  sought  Cormick  v.  Cook,  199  Pa.  St.  631,  49 
to  set  aside  a  deed  made  by  com-  AtL  338. 
plainant  to  her  daughter  of  her  in- 


082  ENFOECEMENT  OF  TRUSTS.  [g  443. 

relief  is  very  necessary  and  effective;  under  it  ail  neccssnry  in- 
cidents to  the  relief  may  be  decreed,  as  an  accounting  where 
it  is  necessary  to  the  equitable  relief  sought;  the  determining 
of  the  amount  of  the  trust  fund,  or  such  other  matters  as  are 
necessary  to  be  determined  in  order  that  full  and  complete  re- 
lief may  be  awarded  the  parties  to  the  suit.^ 

§  44:0.  The  defense. —  The  defense  to  this  class  of  cases 
may  be  made  in  the  usual  way  by  demurrer,  plea  or  answer, 
as  the  case  will  permit  or  the  defense  demands.  The  same 
general  rules  obtain  in  these  cases  in  determining  which  of 
these  defenses  should  be  made  as  prevail  in  equity  defenses. 
One  of  the  principal  questions  involved  in  every  case  of  this 
nature  is,  does  a  trust  as  alleged  really  exist.  If  upon  the 
face  of  the  bill,  admitting  the  tacts  alleged  to  be  true,  no  trust 
is  shown  to  exist,  the  defense  should  be  made  by  demurrer. 
Where  it  appeared  that,  by  means  of  fraud  and  undue  influ- 
ence, a  daughter  procured  from  her  father  a  deed  of  his  real 
estate  upon  the  understanding  that  she  should  hold  said  proj)- 
erty  in  trust  to  be  distributed  after  his  death  between  herself 
and  the  other  children  and  heirs  at  law  of  decedent,  in  propor- 
tion to  their  just  shares  as  provided  by  law,  which  understand- 
ing the  daughter  acquiesced  in,  but  the  deed  was  not  placed 
on  record  as  was  agreed  by  the  parties,  so  that  sales  could  be 
made  of  portions  of  the  land  in  the  name  of  the  decedent  in 
his  life-time;  that  such  sales  were  made  and  the  daughter  took 
the  acknowledgment  of  such  conveyances  and  witnessed  the 
same  during  the  life-time  of  her  father;  that  afterwards  the 
daughter  procured  another  deed  from  her  father  which  she 
caused  to  be  recorded  and  claimed  by  reason  of  it  the  entire 
fee  in  the  premises,  and  denied  that  said  first-mentioned  deed 
was  ever  made  or  executed  or  delivered  to  her;  after  the 
father's  death  a  bill  w^as  filed  by  some  of  the  heirs  at  law  set- 
ting forth  these  facts  and  praying  that  the  second  deed  be  set 
aside,  and  for  the  execution  of  the  trust  prayed  by  the  first 
deed;  the  bill  of  complaint,  however,  did  not  set  up  any  fraud 
in  procuring  the  last  deed,  and  did  not  claim  that  there  was 
any  trust  connected  with  the  giving  of  it;  a  demurrer  was  in- 
terposed to  the  bill  of  complaint  and  was  sustained  for  the 

*  Hutchinson  v.  Brisco,  77  Mo.  373;  Burley  v.  White,  70  Ma  13a 


§  443.]  ENFORCEMENT   OF   TRUSTS.  C83 

reason  that  no  trust  was  alleged  to  have  been  created  and  no 
fraud  alleged  in  the  procuring  of  the  last  deed.^ 

If  a  plea  is  interposed  upon  the  ground  that  because  of 
the  statute  of  limitations  the  action  is  barred,  it  must  also  be 
alleged  in  the  plea  that  no  trust  exists;  for  while  the  relation 
of  trust  and  cestui  que  trust  continues  to  exist,  the  statute  of 
limitations  would  never  begin  to  run  against  a  cause  of  action, 
and  if  the  trust  were  admitted,  as  by  general  demurrer  it 
would  be  if  alleged  in  the  bill  of  complaint,  the  demurrer 
could  not  be  sustained.^  If  the  bill  of  complaint  is  founded 
upon  a  parol  trust,  in  stating  the  cause  of  action  facts  should 
be  alleged  which  will  take  it  out  of  the  statute  of  frauds;  and 
if  they  are  not  so  alleged  the  complaint  would  be  subject  to 
demurrer.  By  the  answer  the  several  allegations  of  the  bill 
of  complaint  may  be  traversed.  The  question  as  to  whether 
there  is  any  trust  alleged  to  exist,  or,  if  alleged,  whether  in 
fact  it  exists,  may  be  raised  by  the  answer,  and  the  sevenil  al- 
legations traversed  or  admitted  which  constitute  the  trust,  as 
the  facts  may  warrant.  The  defense  that  the  trust  was  created 
to  hinder  and  defraud  creditors,  or  for  fraudulent  purposes, 
may  be  raised  by  the  answer,  but  the  facts  of  the  particular 
fraud  relied  upon  must  be  specifically  and  fully  stated.' 

The  defense  that  the  defendant  is  a  bona  fide  purchaser  may 
be  raised  by  plea  supported  by  an  answer,  but  the  answer  must 
set  out  fully  the  facts  relied  upon  by  the  defendant  to  show 
that  he  is  a  honafide  purchaser.  And  it  must  show  to  whom 
the  consideration  is  paid;  that  it  was  a  valuable  consideration, 
and  was  actually  paid  before  notice  of  complainant's  equities. 

1  Thompson  v.  Morley,  103  Mich.  .  .  .  Each  of  these  paragraphs  of 
476;  Tyler  v.  Daniels,  65  111.  316;  the  answer  verily  admitted  that  the 
Broder  v.  Conklin,  77  Cal.  330;  Todd  facts  alleged  in  the  information  were 
V.  Munson.  53  Conn.  579.  true:  and  if  the  allegations  of  the 

2  In  Albert,  etc.  v.  The  State,  etc.,  information  were  true,  then  the  mere 
65  Ind.  413,  421,  it  was  said:  "We  lapse  of  time,  however  long  contin- 
need  hardly  say,  for  it  is  self-evident,  ued,  did  not  and  could  not  afford  tise 
that  while  the  relation  of  trustee  and  appellants  any  defense  to  the  rela- 
cestui  que  trust  might  continue  to  tors'  cause  of  action,  for  the  statute 
exist  between  theappellantsand  the  of  limitations  would  not  run  against 
appellees,  relators,  the  statute  of  lim-  such  cause  of  action  under  the  facts 
itations  would  never  begin  to  run  and  circumstances  stated  in  the  :i- 
against,  and  would  never  constitute  formation."  Veal  v.  Veal,  89  Ky.  ;jli. 
a  bar  to,  the  relators'  cause  of  action.  3  Leath  v.  Watson,  89  Va.  722. 


€84:  ENFORCEMENT    OF    TKUSTS.  [§  444. 

For  it  is  said  that  such  a  plea  necessarily  admits  the  charges 
in  the  bill  which  go  to  make  out  complainant's  title  so  far  as 
it  is  independent  of  the  defendant's  title,  and  by  the  answer 
filed  with  such  a  plea,  and  in  support  of  it,  the  defendant  might 
deny  everj'^  allegation  in  the  bill,  which,  if  admitted,  would  fix 
him  with  notice,  actual  or  constructive;  and  if  these  facts  are 
not  within  his  particular  knowledge  he  must  deny  them  on  in- 
formation and  belief,  showing  his  information.' 

§  444.  The  decree. —  Great  latitude  is  permitted  to  the  court 
of  equit}'  in  its  judgment  and  decree  in  cases  of  this  nature. 
The  decree  is  against  the  person,  and  it  therefore  follows  that 
although  the  trustee  may  be  out  of  the  territorial  jurisdiction 
of  the  court,  he  may  be  compelled  to  perform  acts  in  relation 
to  the  property  which  is  within  the  court's  jurisdiction.  And 
so  where  a  trustee  is  appointed  by  a  foreign  court  he  is  answer- 
able to  that  court,  and  cannot  be  affected  by  the  decrees  or 
orders  of  any  local  court  in  relation  to  the  same  matter  within 
whose  territorial  jurisdiction  he  resides.^  There  can  be  no 
general  rule  laid  down  as  to  the  form  of  the  decree,  as  it  rests 
in.  the  sound  discretion  of  the  court  exercised  in  view  of  the 
particular  facts  in  each  case.  Generally  the  decree  will  enforce 
the  trust  created  and  require  the  parties  to  perform  the  several 
duties  imposed  upon  them  by  it,  not  enlarging  the  trust  or 
making  for  the  parties  a  new  contract,  but  carrying  out  by  the 
decree  whatever  is  necessary  to  afford  the  parties  just  and  equi- 
table relief.  It  may  direct  the  conversion  of  a  trust  fund 
from  real  estate  into  personal  property,  or  vice  versa,  when  such 
a  conversion  is  not  in  conflict  with  the  trust  created  and  is  in 
the  interest  of  the  beneficiary.     This  power,  as  has  been  said, 

iTompkins  V.Ward,  4  Sandf.  (N.  Y.)  537;  Curtis  v.  Smith,  60  Barb.  (N.  Y.) 
594;  Wolfe  v.  Bank  (Teun.  Ch.,  1897),  9,  In  Smith  v.  Life  Ins.  Co.,  96  Mass, 
42  S.  W.  39;  Brainard  v.  Buck,  184  (14  Allen),  336,  342,  it  was  said:  "A 
U.  S.  99.  To  defeat  a  trust  agree-  trust  will  not  be  enforced  here,  if  it 
ment  affecting  lands  upon  the  ground  ariseunder  a  will  proved  only  abroad 
that  the  defendant  is  a  bona  fide  or  in  another  state,  although  the 
purchaser  for  value  and  in  good  parties  are  all  subject  to  the  juris- 
faith,  the  consideration  must  be  ex-  diction  of  the  court,  and  the  trust 
plicitly  pleaded  and  want  of  notice  relate  exclusively  to  personal  prop- 
denied  in  the  fullest  and  clearest  erty."  Campbell  v.  Shelden,  13  Pick, 
manner.  Newman  v.  Schwerin,  48  (Mass.)  8;  Campbell  v.  Wallace,  10 
C.  C.  A.  74-',  109  Fed.  943.  Gray  (Mass.),  163. 

2  Curtis  V.  Smith,  6  Blatchf.  (U.  S.; 


§  445.]  CONTRIBUTION,  EXONERATION,  SUBROGATION.  685 

sprinn-s  from  the  general  jurisdiction  of  the  court  of  equity  over 
trusts'and  trust  funds.  "  It  may  direct  any  investment  or  re- 
investment which  in  its  judgment  will  best  promote  the  inter- 
ests of  the  cestui  que  trust,  having  in  view  both  the  security 
and  the  productiveness  of  the  fund."  ^  The  court  may  also  in 
its  decree  correct  any  mistakes  that  are  clearly  shown  to  exist, 
and  enforce  the  trust  created. 

III.  Contribution,  Exoneration  and  Subrogation. 
§  445.  The  lelation  and  nature  of  the  several  remedies. 

Closely  related  and  largely  dependent  upon  each  other  are 
the  eciuitable  remedies  of  contribution,  exoneration  and  subro- 
gation    So  nearly  are  they  dependent  that  it  would  be  difficult 
to  discuss  them  separately.     Contribution  has  been  defined  to 
be  "the  share  provided  by  or  due  from  one  of  several  per- 
sons to  assist  in  discharging  a  common  obligation  or  in  ad- 
vancing a  common  enterprise."  ^    "  The  equities  of  contribution 
and  exoneration  arise  where  several  persons  are  bound  by  a 
common  charge  not  arising  ex  delicto,  and  their  order  of  lia- 
bility has  been  accidentally  deranged.  If  the  liabilities  be  joint, 
he  who  has  paid  more  than  his  share  is  entitled  to  contribu- 
tion from  the  rest.     If  some  are  liable  in  priority  to  the  rest, 
the  parties  secondarilv  liable,  if  compelled  to  discharge  the 
claim  are  entitled  to  exoneration.    In  order  that  either  of  these 
equities  may  arise,  it  is  essential  that  the  charge  be  binding,  and 

lEx  parte  Jordan,  4  Del.  Ch.  615,  advantageous    to    bold   therewith." 
616     In  this  case  the  court  furtlier  Wl>ere  the  claim  of  the  complainant 
sav-  '-The  authority  to  convert  real  was  that  she  was  the  equitable  owner 
estate   into  personalty  or   to  invest  of  the  property  for  the  reason  that 
personal    funds  in   real  estate   was  the  same  had  been  purchased  with 
largelyexercisedintheEnglishcourt  her  money,  which  was  S^ven  to  the 
of  chancery  in    the  case  of  infants  defendant  for  the  purpose,  but  it  did 
who  were  the  subject  of  its  jurisdic-  not  appear  that  f  .tl;«  ^^^^  ";;;^ 
tion      2  Su.rv    Eq.  Jur.   1357;   Ash-  belonged  to  the  plaintiff,  but  that  a 
burton  V    Ashburton,  6  Ves.  Jr.  6.  portion  of  it  did.  she  was  permitted 
The  same  power  has  also  been  exer-  to  have  relief  by  equitable  hen  on 
cised  in  the  case  of  ordinary  trusts,  the  property  for  the  amount  she  act- 
In  Webb  v.  Shaflsbury,  6  Madd.  100.  ually  furnished.      Bryant  v.   Allen, 
trustees  under  a  will  were  permit-  67  R  Y.  S    89;    Crawford  v.  Jones, 
ted  oat  of  personal  fundsof  the  ces/ui  16:5  Mo.  577,  63  S.  W.  838. 
cue  trmt  to  purchase  for  his  benetit  '^  Anderson's  Dictionary  of  Law; 
certainrealestatecontiguoustolands  Abbott's  Law  Dictionary, 
held  in  trust  and  which  it  would  be 


680        CONTRIBUTION,  EXONERATION,  SUBROGATION.     [§  44:5. 

that  it  do  not  arise  ex  delicto,'^^  for  there  is  no  equity  between 
wrong-doers,  therefore  there  can  be  no  right  to  contribution. 

Where  several  persons  are  severally  or  jointly  bound  to  pay 
an  obligation,  and  one  or  more  have  been  compelled  to  pay  all 
of  it,  or  more  than  their  share,  those  who  were  compelled  to 
pay  may  have  an  action  for  contribution  against  the  others  to 
compel  them  to  contribute  and  pay  their  just  share  of  the  ob- 
ligation. Those  paying  and  discharging  the  obligation  are  en- 
titled to  exoneration,  and  in  equity  may  compel  those  for  whose 
benefit  the  obligation  was  paid  and  the  creditor  to  whom  it 
was  paid  to  subrogate  them  to  any  securities  or  privileges  they 
may  have  by  way  of  relieving  them  from  loss  or  liability  by 
reason  of  said  obligation.  Subrogation  is  the  right  of  one  to 
be  substituted  in  the  place  and  with  the  privileges  of  another 
as  to  the  obligation  discharged.  It  does  not  apply  merely  to 
the  creditor  who  holds  the  obligation  against  the  several  per- 
sons wiio  are  liable  to  pay,  but  as  well  to  any  of  those  jointly 
or  severally  liable  who  have  received  security  from  others  to 
hold  them  harmless  on  account  of  the  said  obligation.  It  has 
been  said  that  "sureties  are  bound  to  observe  good  faith 
toward  each  other,  and  when  funds  are  placed  by  the  principal 
in  the  hands  of  one  surety,  to  be  applied  either  to  the  payment 
of  the  debt  or  for  the  purpose  of  indemnifying  him  against 
any  loss  that  may  arise  from  the  suretyship,  he  must  be  con- 
sidered as  holding  them  for  the  common  benefit  of  all  con- 
cerned." 2  The  indemnity  which  is  stipulated  for  and  taken 
by  one  surety  is  reached  by  his  co-surety  for  the  reason  that 
it  was  intended  for  the  benefit  of  all,  or  that  the  taking  of  it 
was  a  fraud  upon  the  others,  and  so  the  equity  court  converts 
him  into  a  trustee  holding  the  security  for  the  benefit  of  his 
co-sureties.' 

Where  one  of  several  indorsers  of  a  note  paid  more  than 
his  share  on  renewal  of  a  note  and  was  discharged  by  the 
holder  from  further  liability  on  receiving  such  payment,  it 
was  held  that  he  was  entitled  to  contribution  from  the  other 

'  Adams'  Equity,  267.  39  Vt.  617;  Blanton  v.  Bostic,  126  N. 

2  Agnew  V.  Bell,  4  Watts  (Pa.),  33;  C.  418.  35  S.  E.  1035. 

Silvey  V.  Dowell,  53  111.  260;  Guild  v.  » Taylor  v.  Morrison,   26  Ala.  728; 

Butler,  127  Mass.  386;  Miller  v.  Saw-  Moore  v.  Moore,  4  Hawks  (N.  C),  255, 

yer,  30  Vt.  412;  Aldriuh  v.  Hapgood,  15  Am.  Dec.  52a 


§  445.J  CONTRIBUTION,   EXONERATION,  SUBROGATION.  68T 

indorsers,  as  such  discharge  did  not  affect  the  rights  of  the 
indorsers  against  hiin  for  contribution.^  In  an  early  case  it 
was  said  by  the  chancellor  in  a  discussion  of  this  question, 
"It  appears  to  rue  that  this  case  falls  within  the  reason  and 
equity  of  the  doctrine  of  contribution  which  exists  in  the  com- 
mon law,  and  is  bottomed  and  fixed  on  general  principles  of 
justice.  .  ,  .  The  doctrine  rests  on  the  principle  that 
where  the  parties  stand  in  equalijure,  the  law  requires  equality, 
which  is  equity,  and  one  of  them  shall  not  be  obliged  to  bear 
the  burden  in  ease  of  the  rest."  ^  The  remedy  is  founded  upon 
that  maxim  of  equity,  "Equality  is  equity."  It  does  not  de- 
pend upon  the  fact  that  the  parties  are  principal  debtors;  they 
may  be  co-sureties,  partners,  co-owners,  or  occupy  any  relation 
in  which  the  parties  stand  as  equally  or  jointly  liable  for  the 
payment  of  a  debt  or  the  performance  of  an  obligation.  And 
where  several  persons  are  desirous  to  bring  about  the  same  re- 
sult which  will  be  advantageous  to  each  of  them,  and  for  the 
accomplishment  of  it  they  make  common  cause  each  with  the 
others,  for  the  accomplishment  of  the  purpose,  in  such  case 
each  is  bound  to  contribute  proportionately  to  the  consequent 
expenses,  and  if  one  pays  either  upon  judgment  of  a  court  or 

1  Merchants'  National  Bank  v.  Mc-  cosureties.  Or,  more  properly,  ac- 
Anulty,  89  Tex.  124,  33  S.  W.  963:  cording  to  the  modern  doctrine  on 
McGonnigle  v.  McGonnigle,  5  Pa.  this  subject,  the  surety  by  the  mere 
Sup.  Ct  168,  178.  payment  of  the  debt,  and  without 

2  Campbell  v.  Mesier,  4  Johns.  Ch.  any  actual  assignment  from  the 
335,  337.  In  Cuyler  v.  Ensworth,  6  creditor,  is  in  equity  subrogated  to 
Paige  Ch.  (N.  Y.)  32,  33,  the  chan-  all  the  rights  and  remedies  of  the 
cellor  said:  "The  equitable  prin-  creditor,  for  the  recovery  of  his 
ciples  of  the  civil  lavi^  as  to  surety-  debt  against  the  principal  debtor  or 
ship  have  long  since  been  established  his  property,  or  against  the  co-sure- 
as  the  law  of  this  court  upon  that  ties  or  their  property,  to  the  extent 
subject.  One  of  the  fundamental  of  what  they  are  equitably  bound  to 
principles  of  that  law  is  that  co-  contribute."  Craythorne  v.  Swin- 
sureties,  or  joint  cautioners,  are  burne,  14  Ves.  Jr.  164;  Dering  v. 
bound  to  contribute  equally,  as  bo-  Winchelsea.  1  Cox,  318;  Aspinwall 
tween  themselves,  to  tlie  discharge  v.  Sacchi,  57  N.  Y.  331;  Rindge  v. 
of  the  common  burden;  and  another  Baker,  57  N.  Y.  209,  215,  15  Am.  Rept 
is  that  if  one  surety  pays  the  whole  475;  Russell  v.  Failor,  1  Oh  o  St.  329, 
debt  for  which  they  were  jointly  59  Am,  Dec.  631 ;  Corrigan  v.  Foster, 
bound,  he  is  entitled  to  a  cession  of  51  Ohio  St.  225;  Bulkeiey  v.  House, 
the  rights  and  remedies  of  the  cred-  62  Conn.  467;  Morrison  v.  Warner,  200 
itor,  not  only  as  against  the  princi-  Pa.  St.  315,  49  Ati.  983. 

pal  debtor,  but  aiso  as  against  his 


088  CONTRIBUTION,  EXONERATION,  SUBEOGATION.  [§  445. 

voluntarily  a  claim  which  is  justly  due  from  all,  each  of  the 
others  is  bound  to  contribute  to  his  repayment,  to  the  end  that 
all  equally  bear  his  portion  of  the  burden.^  And  in  case  one  of 
the  persons  obligated  to  pay,  where  all  are  liable  for  the  debt, 
becomes  insolvent,  his  share  will  be  apportioned  among  the 
others  that  are  solvent.'^  It  may  be  said  that  no  one  of  those 
obligated  will  be  permitted  to  enforce  contribution  where  he 
has  negligently  failed  to  take  advantage  of  any  legal  dis- 
charge, or  where  he  has  voluntarily  paid,  not  being  legally 
obliged  to  pay,  the  debt  or  obligation.  And  so  where  a  surety 
neglects  to  interpose  a  legal  defense  —  as,  for  example,  the 
statute  of  limitations  —  and  judgment  is  obtained  and  he  is 
compelled  to  pay  it,  he  cannot  enforce  contribution  against 
his  co-sureties.'  But  when  the  payment  cannot  be  legally 
resisted,  and  is  paid  by  one  of  those  who  are  obligated  with 
others  to  pay,  contribution  may  be  compelled.^ 

Lord  Redesdale,  in  Stedhig  v.  Forrester^  said:  "The  prin- 
ciple .  .  is  universal  that  the  right  and  duty  of  contribu- 
tion is  foudded  in  doctrines  of  equity;  it  docs  not  depend  upon 
contract.  If  several  persons  are  indebted  and  one  makes  the 
payment,  the  creditor  is  bound  in  conscience,  if  not  by  con- 
tract, to  give  to  the  party  paying  the  debt  all  his  remedies 
against  the  other  debtors." 

In  cases  of  contribution  the  equity  court  naturally  took 
jurisdiction  to  enforce  the  equality  of  the  burden  assumed  by 
several  obligors,  but  it  is  said  that  "the  equitable  doctrine 
in  progress  of  time  became  so  well  established  that  parties 
were  presumed  to  enter  into  contracts  of  suretyship  upon  its 
knowledge,  and  consequently  upon  a  mutual  understanding 
that  if  the  principal  failed  each  would  be  bound  to  share  with 
the  others  a  proportionate  loss.  Courts  of  common  law  there- 
upon assumed  jurisdiction  to  enforce  contribution  between  the 

1  Security,  etc.  Co.  v.  St.  Paul,  etc.  in  the  burden  thrown  upon  them  by 

Co.,  50  Conn.  233.  the    insolvency  of  a   part  of   their 

2North   V.   Brace,  30  Conn.  60.  72,  number."   Dodd  v.  Winn,  27  Mo.  501; 

where  the  court  said:     "As  a  gen-  Preston  v.  Preston,  4  Grat.  (Va.)  88. 

eral  doctrine  of  equity  it  is  true,  as  ^  Slieltou  v.  Farmer,  9  Bush  (Ky.), 

claimed  by  the  petitioner's  counsel,  314. 

that  where  there  is  an  entire  debt  *  Aldrich  v.  Aldrich,  56  Vt.  324,  48 

or  duty  owed  equally  by  several,  the  Am.  Rep.  791. 

solvent  debtors  must  share  equally  5 3  Blk.  575. 


S  446.1  CONTRIBUTION,  EXONERATION,  SUBROGATION. 


689 


sureties,  proceeding  on  the  principle  that  from  their  joint  un- 
dertaking there  was  an  implied  promise  on  the  part  of  each 
surety  to  contribute  his  share,  if  necessary,  to  make  up  the 
common  loss.  This  jurisdiction  of  the  common-law  courts  did 
not,  however,  impair  the  concurrent  jurisdiction  of  equity. 
Indeed,  in  many  cases,  especially  where  the  sureties  were  nu- 
merous and  some  of  them  insolvent,  or  where  some  of  the 
sureties  had  died,  courts  of  equity  were  alone  adequate  to  af- 
ford complete  remedy.  It  is  also  true  that  the  doctrine  of 
contribution  applies  equally  between  those  who  are  original 
co-contractors  —  that  is,  between  those  who  are  jointly  bound 
on  their  own  account  (not  being  copartners)  —  as  it  does  be- 
tween those  who  are  co-sureties;  that  is,  jointly  bound  to  an- 
swer for  the  debt  or  default  of  another.  Thus,  if  a  note  were 
given  for  the  cost  of  a  partition  wall  by  the  owners  of  the  ad- 
joining premises  between  which  the  wall  was  constructed,  and 
one  of  the  parties  should  pay  the  entire  amount  of  the  note  or 
more  than  his  proportionate  part,  he  could  claim  a  contribution 
from  the  other."  ^ 

§  44(».  Tlie  jurisdiction  of  equity  —  Contribution  —  Sub- 
rogation.—  As  we  have  seen  in  the  preceding  section,  while 
the  jurisdiction  of  the  court  of  equity  in  actions  for  contribu- 
tion is  concurrent  with  courts  of  law,  it  nevertheless  remains 
unimpaired  in  cases  where  the  parties  are  numerous,  or  some 
of  them  have  died,  and  where  it  is  advisable  and  necessary  to 
settle  the  whole  controversy  in  the  one  litigation.  Subrogation 
is  peculiarly  an  equitable  remedy.  It  is  substituting  the  person 
who  has  borne  the  unequal  burden  to  the  same  position  of  the 
party  who  possessed  and  enforced  the  obligation,  giving  hira  all 
the  securities,  privileges  and  remedies  held  by  that  party.  It  is 
the  process  of  assisting  the  equalization  of  unequal  burdens  borne 
by  one  or  more  co-obligors  by  giving  to  them  the  benefit  of  all 
securities,  rights  or  remedies  that  exist  on  account  of  the  obliga- 
tion which  has  been  met,  whether  in  the  possession  of  the  cred- 
itor or  the  person  who  held  and  enforced  the  obligation,  or  of 
his  co-obligors.     It  is  not  a  legal  right,  but  an  equitable  one,  and 

I  Chipman  v.  Morrill,  20  Cal.  131,  Grat.  (Va.)  267;  Bank  v.  Ibbotson,  24 

136;    Campbell    v.   Mesier,   4  Johns.  Wend.  (N.  Y.)  472,  479;   Chaflfee  v. 

Ch.  332,  339;  Fletcher  v.  Grover,   11  Jones,  19  Pick.  (Mass.)  260;  Thebus 

N.  H.   869;    Wayland   v.   Tucker,   4  v.  Smiley,  110  111.  3ia 
44 


690  CONTRIBUIION,  EXONERATION,  SUBROGATION.  [§  447. 

can  be  enforced  only  by  proceedings  in  equity.^  It  has  been 
defined  to  be  "the  substitution  of  a  new  for  an  old  creditor; 
or,  in  its  more  general  sense,  '  the  act  of  putting,  by  a  trans- 
fer, a  person  in  the  place  of  another,  or  a  thing  in  the  place  of 
another  thing.  By  this  transfer  the  new  creditor  is  subrogated 
to  all  the  rights  of  the  original  creditor.'  "^ 

In  Knighton  v.  Curry ^  it  was  said:  "The  principle  upon 
which  the  whole  doctrine  of  subrogation,  not  only  as  it  is  ap- 
plied for  the  protection  of  sureties,  but  as  it  is  applied  to  com- 
pel him  who  is  primarily  liable,  or  the  thing  which  may  be 
primarily  liable,  to  bear  a  burden,  to  continue  to  bear  it  for  the 
relief  of  him,  or  another  thing,  secondarily  liable,  does  not  de- 
pend upon  contract,  but  has  its  foundation  in  natural  justice. 
.  .  .  No  doctrine  can  be  more  firmly  established  than  that 
a  surety  who  has  paid  the  debt  of  the  principal  is  entitled  to 
stand  in  the  place  of  the  creditor  as  to  all  securities  for  the 
debt  held  or  acquired  by  the  creditor,  and  to  have  the  same 
benefit  from  them  as  the  creditor  might  have  had  if  the  surety 
had  not  paid,  and  the  creditor  had  resorted  to  them.  As  a  nec- 
essary consequence  of  this  right  of  the  surety,  it  is  well  settled 
on  authority  that  if  the  creditor,  without  the  consent  of  the 
surety,  parts  with  or  renders  unavailable  any  security  or  fund 
which  he  has  the  right  to  apply  in  satisfaction  of  the  debt,  the 
surety  is  exonerated  to  the  extent  of  the  value  of  such  securi- 
ties. The  reason  is,  that  such  securities  or  funds  are  impressed 
with  a  trust  for  the  payment  of  the  debt,  and  the  creditor  is 
bound  to  apply  them,  or  hold  them  as  a  trustee  ready  to  be 
applied,  for  the  benefit  of  the  surety."* 

§  44:7.  To  what  cases  subrogation  applies. —  In  a  general 
way  the  application  of  this  remedy  has  been  shown.  To  par- 
ticularize to  the  extent  of  pointing  out  the  individual  cases 
that  it  will  relieve  would  be  unprofitable  and  unnecessary. 
The  most  that  can  be  done  is  to  notice  some  few  of  the  many 
classes  of  cases  that  are  relievable  by  the  remedy.  In  noticing 
these  the  principles  already  mentioned  must  be  kept  in  mind. 
Equality,  just  and  conscientious  dealing  is  the  foundation  of 
the  remedy,  where  one  has  paid  the  obligation  of  another,  or, 

1  Smith  V.  Harrison,  33  Ala.  706.  <  1  Story,  Eq.  499;  Brandt  on  Sure- 

2  Houston  V.  Bank,  25  Ala.  250,  257.     tyship,  260,  282,  870,  372;  Hayes  v. 

3  62  Ala.  404,  408.  Ward,  4  Johns.  Ch.  123. 


§  447.]  CONTRIBUTION,  EXONERATION,  SUBROGATION.  691 

by  re;ison  of  his  default,  been  compelled  to  assume  and  satisfy 
obligations  and  burdens  he  should  not  in  justice  bear;  as  in 
case  of  a  surety  who  is  compelled  to  pay  the  obligation  of 
another  or  of  his  several  co-sureties;  he  may,  by  this  remedy, 
be  subrogated  to  all  the  rights  and  benefits  of  the  creditor  or 
obligor,  and  to  any  right  or  benefit  which  any  one  or  more 
of  his  co-sureties  may  have  by  way  of  security  or  otherwise  to 
secure  them  in  the  transaction.  Or,  where  the  purchaser  of 
lands,  after  paying  the  full  purchase  price,  discovers  that  there 
is  an  incumbrance  on  the  property  which  he  is  compelled  to 
pay  and  satisfy  in  order  to  clear  his  title  and  save  his  prop- 
erty, justice,  equity  and  fair  dealing  demand  that  such  a  pur- 
chaser be  indemnified  so  far  as  is  possible  in  such  case,  and  the 
equity  court  will  compel  the  owner  of  the  incumbrance  to  as- 
sign it  to  the  purchaser,  and  thus  subrogate  or  substitute  the 
purchaser  to  the  rights  and  remedies  of  the  incumbrancee, 
giving  the  purchaser,  because  he  has  been  thus  compelled  and 
has  paid  the  incumbrance,  all  the  remedies  and  rights  the  in- 
cumbrance affords  against  the  vendor  of  the  premises.^  Or 
where  one  has  signed  as  surety  the  official  bond  of  an  officer, 
as  of  a  sheriff,  and  the  officer  makes  default  by  failing  to  turn 
over  money  collected  in  his  official  capacity;  or  where  the 
sheriff  has  failed  to  levy  an  execution  or  serve  a  process,  as  he 
was  legally  bound  to  do,  and  damage  resulted,  if  the  surety  is 
compelled  to  pay  the  amount  by  reason  of  the  bond  he  has  ex- 
ecuted in  any  particular  case,  he  will  be  subrogated  to  all  the 
rights  and  privileges  the  injured  party  had  against  the  sheriff 
or  the  officer,  and  equity  will  enforce  the  remedy.^  Where  an 
execution  creditor  acquired  a  lien  upon  certain  personal  prop- 
erty by  levy  of  his  execution,  it  was  held  he  had  the  right  to 
redeem  the  property  from  a  chattel  mortgage  which  was  a 
prior  lien  thereon,  and  upon  payment  of  the  amount  due  upon 
the  mortgage  was  entitled  to  be  subrogated  to  the  rights  of 
the  mortgagee,  and  therefore  has  a  right  to  demand  and  re- 
ceive an  assignment  of  the  mortgage.*     So  a  junior  mortgagee 

1  Bush  V.  Wadsworth,  60  Mich.  255;  2philbrick  v.  Shaw,  61  N.  H.  356; 

Coudert  v.  Coudert,  i'S  N.  J.  Eq.  407;  Skipwith    v.   Hurt,  94  Tex.   322,  60 

Harland  v,  Jones,  104  Ind.  167;  Fow-  S.  W.  423;  Boone,  etc.  Bank  v.  Byrum, 

ler  V.  Parsons,  143  Mass.  401;  Hines  68  Ark.  71,  56  S.  W.  5;J1. 

V.  Dreslier,  93  Ind.  551;  Simpson  v.  3  in  Lucking  v.  Wesson,  25  Mich. 

Ennis,  114  Ga.  202.  443,445,  the  remedy  was  discussed 


692 


CONTRIBUTION,  EXONERATION,  SUB^JOGA.TI0N.  [§  447. 


who  has  been  compelled  to  pay  a  senior  mortgage  which  is 
being  foreclosed  is  entitled  to  be  subrogated  to  the  rights  and 
remedies  of  the  owner  of  the  senior  mortgage  and  to  an  as- 
si^mment  of  the  mortgage  or  judgment  and  decree  for  sale,  if 
one  has  been  taken.^  And  where  a  mortgagor  conveys  the 
morto:aged  premises  subject  to  the  mortgage,  the  purchaser 
deductmg  the  amount  due  from  the  purchase  price  and  assum- 
ing the  payment  thereof,  if  in  such  case  the  mortgagor  is  com- 
pelled to  pay  the  mortgage,  he  will  be  entitled  to  be  subro- 
gated to  the  rights  of  the  mortgagee,  and  to  hold  the  mortgage 
a  lien  upon  the  land  to  secure  his  payment.  And  it  has  been 
held  that  he  has  the  same  right  if  he  voluntarily  pays  the  mort- 
o-age.2     So  the  surety  for  a  purchaser  of  lands  has  the  right  to 


in  a  case  where  an  execution  cred- 
itor had  levied  upon  goods  and  chat- 
tels upon  which  anotiier  party  held 
a  chattel  mortgaj^e.     After   stating 
that  the  true  relation  of  the  parties 
is  that  of  debtor  on  the  one  side,  and 
creditor,  secured  by  lien  upon  prop- 
erty, on   the    other,    the  court  say: 
"This  being  so,  the  holder  of  a  sub- 
sequent  lien    must  have  the  same 
right  to  protect  his  interest  in  the 
property  that  he  would  have  had  if 
the  prior  lien  had  been  of  any  other 
nature.    And.  to  this  end,  he  may  pay 
otf  tlie  prior  incumbrance  as  the  only 
mode  in  which  he  can  prevent  his 
own  from  being  cut  off  by  the  other 
being  en  forced.   If,  however,  he  were 
to  lose  the  money  paid  for  that  pur- 
pose, this  right   would  be  of   little 
value  in  some  cases,  and  in  others  of 
none  at  all.     Obviously  the  privilege 
of  redeeming  from  a  claim  equal  to, 
or  greater  than,  his  own  would,  un- 
der such  circumstances,  be  a  mere 
mockery,  while  if,on  redem|ition.  he 
were  to  be  entitled  to  be  subrogated 
to  the  rights  of  the    person    from 
whom  he  redeemed,  he  would  always 
be  enabled  to  protect  himself  fully, 
if  the  proi>erty  is  sufficient  for  the 
purpose.     No  reason  at  all  satisfac- 
tory to  our  minds  has  been  suggested 
in  answer  to  the  claim  to  subroga- 


tion. The  mortgagor  certainly  can- 
not object,  as  it  does  not  in  any  way 
affect  his  legal  rights.  He  is  not 
liable  otiierwise,  or  to  any  greater 
extent,  after  the  first  lien  is  trans- 
ferred than  he  was  before.  Nor  can 
the  mortgagee  object  if  he  is  fully 
paid,  for  he  has  no  right  to  anything 
beyond  that.  It  may  be  said  that, 
while  he  is  obliged  to  receive  pay- 
ment, he  is  not  obliged  to  sell  his  de- 
mand; but  the  law  determines  what 
shall  be  the  efTectof  payment,  when 
one  makes  it  to  protect  a  subsecjuent 
interest,  and  the  party  cannot  pre- 
vent the  legal  incidents  attaching 
by  refusing  his  assent.  It  is  not 
strictly  a  sale,  but  there  has  been 
redemption  under  circumstances 
which  the  law  says  shall  entitle  the 
party  redeeming  to  subrogation. 
And  he  demands  and  receives  an 
assignment  by  way  of  evidencing 
this  right."    2  Story.  Eq  Jur.  1023. 

1  Citizens'  Sav.  Bank  v.  Foster,  22 
Abb.  (N.  Y.)  4'i5;  Eberts  v.  Gerding, 
116  111.  217;  Patterson  v.  Birdsall,  64 
N.  Y.  295,  21  Am.  Rep.  009;  Wheeler 
v.  Willard,  44  Vt.  640;  Starr  v.  Ellis, 
6  Johns.  Ch.  (N.  Y.)  898,  a95. 

2  Baker  v.  Terrill,  8  Minn.  195 
Sherman  v.  Merrill,  33  Mich.  284 
Dorr  v.  Peters,  3  Edw.  Ch.  (N.Y.)  132 
Kinnear    v.    Lowell,    34    Me.     299; 


§  448.]  CONTRICUTION,  EXONERATION,  SUBKOGATION.  693 

be  subroo-ated  to  the  liens  of  the  vendor  upon  the  lands  when 
the  surety  is  compelled  to  discharge  the  obligation.^     Where 
one  guarantees  the  payment  of  a  promissory  note  and  is  com- 
pelled to  make  payment,  he  will  be  subrogated  to  the  rights  of 
the  holder,  and,  if  it  is  secured  by  mortgage,  to  the  benefit  of 
the  mortgage.2     Where  a  guarantor  of  a  note  was  called  upon 
to  pay  th°e  slme,  the  note  being  secured  by  a  chattel  mortgage, 
it  was  held  that  the  guarantor  was  entitled  to  be  subrogated 
to  the  rights  of  the  holder  of  the  note  and  to  the  security  rep- 
resented°by  the  chattel  mortgage,  and  the  fact  that  the  mort- 
gacre  had  been  discharged  would  not  deprive  him  of  the  security. 
§  448.  A  mere  volunteer  not  entitled  to  remedy.—  Where 
one  who  makes  payment  is  a  mere  volunteer,  that  is,  one  who 
pays  the  debt  of  another  where  there  is  no  obligation,  legal  or 
equitable,  requiring  him  to  do  so,  he  is  not  entitled  to  be  subro- 
gated to  the  rights  and  privileges  of  the  creditor.     He  is  con- 
sidered as  a  mere  stranger  — a  volunteer;  he  pays  the  debt  be- 
cause he  chooses  to  do  so,  not  because  he  was  compelled  either 
legally  or  equitably  to  pay.     He  may  make  his  own  terms, 
and  if  he  desires  security  he  may  demand  it.     He  does  not  re- 
quire the  aid  of  the  court  of  equity  and  it  will  not  aid  him.^ 

Weeks  V.  GarTey,  56  N.  Y.  Sup.  Ct.  "In  order  to  lay  the  foundation  of 

557-  Cox  V.  Wheeler,  7  Paige  Cli.  248;  an  equitable    lien  upon  real  estate 

Whitehead  v.  Henderson.  67  Ark.  200,  there  must  exist:  first,  a  contract  in 

56  S.  W.  100.5;  Brainard  v.  Feather,  writing   out    of    which  the    equity 

12a  Mich.   469,  82  N.  W.  212;  First  springs,    sufficiently    indicating  an 

Nat  Bank  v.  Hunton,  70  N.  H.  224,  intention  to  make  .some   particular 

46  Atl   1049;  Farmers',  etc.  Bank  v.  property  therein  identified  a  secu- 

Fidelity,  etc.  Co.,  108  Ky.  384,  56  S.  rity   for  the   debt  or  obligation,  or 

W  671;  Clapp  v.  Cooper,  64  N.  Y.  S.  whereby  the  party  promises  to  con- 

^g        '  vey  or  assign  or  transfer  the  prop- 

iBallew  V.    Roler,    124  Ind.   557;  erty  as  security;    .    .     .     or, second. 

Tuck  V.  Calvert,  33  Md.  209;  Deitzler  in  the  absence    of    such    contract. 

^  Mishler,  37  Pa.  St.  82.  ^here,  from  the  relations  of  the  par- 

'2  Rand    V.    Barrett,   66  Iowa,  731;  ties,  equity  will  declare  a  hen  out  of 

Havens  v  Willis,  100  N.  Y.  482.  considerations  of  right  and  justice, 

3  In  Desotv.  Ross,  95  Mich.  81,  it  based  upon  those  maxims  wluch  he 

was  held  that  a  stranger  to  a  title  at  the  foundation  of  equity  jurispru- 

cannot  by  payment  of  the  whole  or  dence.      Such  are  the  cases   when 

any  portion  of  the  mortgage  become  one  joint  owner,  acting  in  good  faith 

subrogated  to  the  rights  of  the  mort-  and  for  the  joint  benefit,  makes  per- 

gagee     Bush  v.  Wadsworth,  60  Mich,  manent  improvements  upon  the  prop- 

2.55  and  note  the  collection  of  Mich-  erty  which  add  a  permanent  value 
iga'n  cases  on  this  subject.  In  Kelly  to  the  estate;  or  when  a  party,  in- 
V  Kelly  54  Mich.  80,  47,  it  was  said:     nocently  and  in  good  faith,  suppos- 


694 


OONTEIBUTION,  EXONERATION,  SUBROGATION.  [§  449. 


This  question  has  been  fully  and  clearly  stated  by  Chancellor 
Walworth  in  Sandford  v.  McLean^  as  follows:  "It  is  only  in 
cases  where  the  person  advancing  money  to  pay  the  debt  of  a 
third  party  stands  in  the  situation  of  a  surety,  or  is  compelled 
to  pay  it  to  protect  his  own  rights,  that  a  court  of  equity  sub- 
stitutes him  in  the  place  of  the  creditor,  as  a  matter  of  course, 
without  any  agreement  to  that  effect.  In  other  cases  the  de- 
mand of  a  creditor  which  is  paid  with  the  money  of  a  third 
person,  and  without  any  agreement  that  the  security  shall  be 
assio-ned  or  kept  on  foot  for  the  benefit  of  such  third  person, 
is  absolutely  extinguished." 

§  449.  One  guilty  of  fraud  or  negligence  not  entitled  to 
the  relief.—  The  very  object  of  the  remedy  —  subrogation  — 
is  to  do  justice  and  subserve  equity.     And  so  where  one  has 
been  guilty  of  fraud  which  has  resulted  in  bringing  about  the 
particular  situation  in  which  he  claims  the  aid  of  the  equity 
court  in  enforcing  the  remedy,  the  court  will  refuse  its  assist- 
ance, and  if  the  condition  which  is  sought  to  be  relieved  was 
occasioned   by    the   negligence   of   the    person  invoking   the 
remedy,  the  court  will  refuse  its  aid.     It  has  been  said  that 
"it  is  only  to  prevent  fraud  and  subserve  justice  that  equity 
engrafts  the  wholesome  provision  of  subrogation  or  of  equi- 
table lien  upon  a  transaction,  and  it  should  never  be  done 
where  it  would  work  injustice." ^     And  in   Conner  v.  Welch^ 
the  court  say:  "A  court  of  equity  never  relieves  a  man  from 
the  consequences  of  his  own  culpable  negligence." 

ing  himself  to  be  the  owner,  makes  341;  Wood  v.  Trust  Co.,  128  U.  S.  416; 

permanent  improvements,  or  repairs  ^tna  Life  Ins.  Co.  v.  Middleport,  124 

which     permanently    enhance    the  U.  S.  534:  Montgomery  v.   Council, 

value     of  the    property,— the    real  etc.,  40  C.  C.  A.  108,  99  Fed.  825,  held 

owner,   when   he  seeks  the   aid   of  not  a  volunteer;  Rachal  v.  Smith,  42 

equity  to  establish  or  enforce  some  C.  C.  A.  297,  101  Fed.  159. 

equitable  right  or  claim  to  the  prop-  >  3  Paige  Ch.    (N.  Y.)   117,  122,  23 

erty,  upon  the  principle  that  he  who  Am.  Dec.  773;  Wormer  v.  Waterloo, 

asks  equity  must  do  equity,  will  be  etc.  Works,  62  Iowa,  699. 

required   to    pay    the    amount    ex-  2  Kelly  v.  Kelly,  54  Mich.  30,  47; 

pended."    Smith  v.  Austin,  9  Mich.  Johnson  v.  Moore,  33  Kan.  90. 

465;   Langley  v.  Chapin,  134  Mass.  s  51  wis.  431,  439;  Story,  Eq.  Jur., 

82;  Moran  v.  Abbey,  63  Cal.  56;  Mo-  sec.  138i.    In  section  146  Judge  Story 

sier's  Appeal,  56  Pa.  St.  76.  93  Am.  says:  "It  is  not,  however,  suflficient 

Dec.  783;  Miller's  Appeal,  119  Pa.  St.  in  all  cases,  to  give  the  party  relief, 

620;  Wadsworth  v.  Blake,  43  Minn,  that  the  fact  is  material;  but  it  must 

509;    Hungerford  v.  Scott,  37   Wis.  be  such  as  he  could  not  by  reason- 


§  450.]  CONTEIBDTION,  EXONERATION,  SUBROGATION.  695 

§  450.  When  the  remedy  is  complete. — Nothing  less  than 
a  complete  satisfaction  of  the  indebtedness  or  obligation  will 
give  to  the  surety,  or  person  who  pays  or  satisfies  it,  the  right 
to  be  subrogated  to  the  privileges,  remedies  and  securities  of 
the  creditor,  for  the  creditor  is  entitled  to  full  and  complete 
satisfaction,  and  until  that  occurs  the  court  will  not  interfere 
and  compel  him  to  surrender  his  securities.  It  has  been  held 
that  "  there  shall  be  no  interference  where  the  creditor's  rights 
or  securities  might  prejudice  or  embarrass  him  in  the  collec- 
tion of  the  residue  of  his  debt.  The  surety  must  satisfy  first 
his  entire  debt."  ^  No  portion  of  the  creditor's  security  can 
be  interfered  with  until  all  the  debt  is  paid ;  nor  can  the 
surety  who  has  paid  a  part  share  the  security  held  by  the  cred- 
itor, or  any  portion  of  it.  "  To  entitle  a  surety  to  be  substi- 
tuted in  the  place  of  the  creditor,  he  must  pay  the  whole  of 
the  debt  he  is  bound  to  pay;  a  payment  of  part  is  not  suf- 
ficient. .  .  .  The  principle  of  substitution  gives  to  the 
party  substituted  the  rights  of  an  assignee.  The  surety  there- 
fore cannot  compel  the  creditor  to  assign  the  security,  unless 
he  first  pays  all  he  is  bound  to  pay.  If  he  does  not,  the  cred- 
itor still  has  a  right  to  retain  the  pledge  for  his  own  security 
and  benefit."^ 

In  Wilcox  V.  Fairhaven  Bank,  etc.^  this  rule  was  emphasized 
and  very  clearly  stated.  It  was  said :  "  It  is,  however,  un- 
doubtedly an  established  rule  of  equity  that  a  surety  who  has 

able  diligence  get  knowledge  of,  quiry,  which  would  have  enabled 
when  he  was  put  upon  inquiry.  For,  them  at  once  to  correct  the  mistake, 
if  by  such  reasonable  diligence  he  or  to  obviate  all  ill  effects  there- 
could  have  obtained  knowledge  of  from.  In  short,  it  refuses  all  its  aid 
the  fact,  equity  will  not  relieve  him;  to  those  who,  by  their  own  negli- 
since  that  would  be  to  encourage  gence,  and  by  that  alone,  have  in- 
culpable negligence."  And  in  a  note,  curred  the  loss,  or  may  suffer  the 
"If  a  court  of  equity  is  asked  to  give  inconvenience."  But  see  Wall  v. 
relief  in  a  case  not  fully  remediable  Mason,  102  Mass.  313. 
at  law,  or  not  remediable  at  all  at  i  Kyner  v.  Kyner,  6  Watts  (Pa.), 
law,  then  it  grants  it  upon  its  own  227. 

terms, and  according  to  its  own  doc-  2  Richardson    v.    Bank,     3    Mete, 

trines.     It  gives  relief  only  to  the  (Mass.)  536,  541. 

vigilant  and  not  to  the  negligent;  to  » 7  Allen  (Mass.),  270,  272;  Child  v. 

those  who  have  not  been  put  upon  New  York,    etc.  Ry.   Co.,  129  Mass. 

their  diligence  to  make  inquiry,  and  170;  Gannett  v.  Blodgett,  39  N.   H. 

not  to  those  who,  being  put  upon  in-  150;  Stamford  Bank  v.  Benedict,  15 

quiry,  have  chosen   to  omit  all  in-  Conn.  4-37. 


G96  CONTRIBUTION,  EXONERATION,  SITE  ROGATION.  [§  45  L 

paid  the  debt  of  his  principal,  either  voluntarily  or  by  com- 
pulsion, is  entitled  for  his  indemnity  to  any  property  pledged 
or  collateral  security  given  therefor  by  the  principal  to  the  cred- 
itor. But  as  this  rule  is  founded  on  the  principles  of  reason  and 
justice,  and  not  upon  any  contract  or  stipulation  to  that  effect 
between  the  parties,  it  follows  as  a  necessary  consequence  that 
a  surety  is  not  to  be  substituted  in  the  place  of  the  creditor, 
unless  from  the  circumstances  of  the  case  it  is  shown  that  it  is 
just  and  reasonable  that  he  should  be.  Hence  it  is  obvious 
that,  in  order  to  become  entitled  to  such  substitution,  he  must 
first  pay  the  whole  of  the  debt  or  debts  for  which  the  property 
is  mortgaged  or  the  collateral  security  is  given  to  the  cred- 
itor; for  it  would  be  manifestly  unjust,  and  a  plain  violation 
of  his  rights,  to  compel  him  to  relinquish  any  portion  of  the 
property  before  the  obligation  for  the  performance  of  which  it 
was  conveyed  to  hira  as  security  had  been  fully  kept  and  com- 
plied with." 

§  451.  Pleadings  —  Procedure  —  Bill  of  complaint. —  No- 
where in  equity  procedure  are  the  broad  and  liberal  principles 
of  the  chancery  jurisdiction  more  fully  emphasized  than  in 
proceedings  to  enforce  the  several  remedies  considered  in  this 
subdivision  —  contri bution,  exoneration  and  subrogation.  They 
are  all  so  closely  related  that  in  enforcing  the  one  the  others 
are  involved,  and  the  court  having  obtained  jurisdiction  of  a 
case  for  contribution  will  not  only  determine  that  question, 
who  of  the  parties  are  liable  to  contribution,  but  the  amount 
that  each  should  contribute,  and,  further,  under  the  general 
prayer  for  relief  the  court  will,  in  a  proper  case,  subrogate  the 
complainant  to  the  position  of  the  creditor  or  to  the  sureties  of 
a  co-surety  and  decree  that  all  securities,  rights,  privileges  and 
benefits  incident  to  the  subject-matter  held  by  the  creditor  or 
any  of  the  parties  shall  be  subjected  to  the  uses  and  benefit  of 
the  plaintiff  in  settlement  of  the  debt  or  obligation.  If  it  be 
a  mortgage,  that  it  shall  be  assigned,  and,  if  not  so  assigned, 
that  the  decree  shall  stand  as  an  assignment  to  the  extent  of 
subrogating  the  plamtiff  to  the  privileges  of  the  security.  Not 
only  will  the  court  determine  the  rights  of  the  parties,  but  it 
will  enforce  them  and  thus  equalize  all  losses  sustained.  The  bill 
of  complaint  should  therefore,  by  proper  allegations,  set  forth  all 
the  facts  and  circumstances,  the  parties  and  their  exact  relation 


S  452.1  CONTRIBUTION,  EXONERATION,  SUBROGATION.  697 

to  the  subject-matter  of  the  cas3;  the  indebtedness  should  be 
clearly  and  fully  described,  and  it  should  appear  that  the  plaint- 
iff, as  surety,  co-surety,  subsequent  mortgagee,  or  in  some  such 
relation,  was  compelled,  or  was  under  legal  obligations,  to  pay, 
and  did  pay,  the  debt,  lien  or  obligation,  and  is  therefore  entitled 
to  the  contribution  of  his  co-sureties.     Whatever  the  security 
or  lien  may  be  that  the  plaintiff  claims  he  should  have  by  sub- 
rogation, it  should  be  fully  set  forth  in  the  complaint,  with 
reasons  for  the  claim,  and  the  owner  made  a  party  that  he 
may  defend  it  if  he  desires.^     It  must  also  appear  by  proper 
allegations  that  the  security,  mortgage  or  lien  is  a  subsisting 
legal  claim  or  security  which  could  be  enforced  by  the  owner; 
that  is,  the  plaintiff  must,  in  the  stating  part  of  his  bill,  show 
a  full  and  complete  case,  so  that  if  the  allegations  are  taken  as 
true  there  would  be  no  doubt  of  his  right  to  the  relief  prayed 
ior.2     The  prayer  should  follow  the  case  made  in  the  stating 
part  of  the  bill.     If  contribution,  exoneration  and  subrogation 
are  sought  to  be  settled  in  the  same  decree  the  prayer  should 
so  ask.  °  No  particular  form  of  special  prayer  can  be  stated  as 
applicable  to  this  class  of  cases.     There  should  be  a  general 
prayer,   however,  that  the  court  may  afford  to  the  plaintiff 
whatever  relief  is  equitable  and  just  and  warranted  by  the 
bill  of  complaint. 

§  452.  Defenses.— Defenses  to  bills  of  this  nature  are  not 
peculiar;  they  are  by  demurrer,  plea  or  answer,  and  follow  the 

1  Where  the  holder  of  a  junior  in-  subrogated  to  the  rights  of  another 

cumbrance  seeks  to  be  subrogated  mortgagee,  but  failed  to  allege  that 

to  the  rights  of  the  senior  incum-  such    mortgage    was   at   the    time 

brancer  as  against  the  rights  of  an-  of  the   execution   of  complainant's 

uther  intervening  incumbrancer,  he  mortgage  a  subsisting  incumbrance 

must  make  the  senior  incumbrancer  upon  the  land,  the  court  held  that 

a  party  to  the  proceedings,  or  show  the  allegations  in  the  bill  were  in- 

by  allegations  a  good  reason  for  not  sufficient  to  entitle  the  plaintiff  to 

doing  so,  and  ask  for  such  relief  as  subrogation.     Tait  v.  American,  etc. 

the    senior     incumbrancer     should  Co.  (Ala.,  1902),  31  So.  623. 

claim,  and  ask  as  if  he  were  proceed-  2  in  such  a  case  the  objection  that 

ing  in  his  own  right.  Schilb  v.  Moon,  there  is  an  adequate  remedy  at  law 

50  W.  Va.  47,   40  S.  E.  329 ;  Gall  v.  will  not  be  sustained,  for  if  the  com- 

Gall,   50  W.  Va,  523,   40  S.  E.  380;  plaint  states  facts  sufficient  to  con- 

Wilkins  v.  Gibson.  113  Ga.  31,  38  S.  stitute  a  cause  of  action,  it  does  not 

E.  374.  But  see  Schuyler  v.  Booth,  74  .  matter  whetlier  it  is  legal  or  equi- 

N.  Y.  S.  733.     Where  a  purchaser  at  table.     Schuyler  v.  Booth,  74  N.  Y.  & 

its  own  foreclosure  sale  sought  to  be  733. 


698  ACTIONS    FOR   DISSOLUTION    OF   PARTNERSHIP.  [§  453. 

general  rules  of  practice  applicable  to  chancery  causes.  The 
defendant  is  entitled  to  file  a  cross-bill  where  he  seeks  sub- 
stantive relief  incident  to  the  relief  prayed  for  in  the  original 
bill.  Where  a  creditor  sold  real  estate  subject  to  a  mortgage, 
then  a  lien  upon  the  property,  his  grantee  afterward  convey- 
ing the  property  in  the  same  manner,  on  a  foreclosure  sale  of 
the  mortgage,  there  being  a  deficiency  and  a  judgment,  which 
was  paid  by  the  grantor,  in  a  subsequent  proceeding  to  declare 
a  levy  of  an  execution  upon  the  premises  and  the  judgment 
void,  and  to  quiet  the  title,  it  was  held  that  the  defendant 
owning  the  judgment  and  the  lien  by  reason  of  the  levy  of  the 
execution  might  file  a  cross-bill  alleging  the  non-payment  of 
the  judgment  and  the  assignment  thereof  to  him,  and  praying 
to  have  his  suretyship  established  because  of  the  payment  of 
the  deficiency  and  the  judgment,  declared  a  valid  and  subsist- 
ing lien  upon  the  property,  and  a  decree  to  enforce  it  for  his 
benefit;  that  is,  that  he  be  subrogated  to  the  benefit  of  the 
security  it  afforded,  the  court  saying  that  such  a  cross-bill  was 
germane  to  the  original  action  to  quiet  title.* 

In  this  class  of  cases,  as  in  ordinary  chancery  causes,  the 
allegations  of  the  bill  may  be  met  and  traversed,  or  admitted 
by  the  answer,  and  an  issue  of  fact  or  law  tendered  upon  any 
or  all  of  the  material  causes  of  action  raised  by  the  complaint. 
It  should  be  borne  in  mind  that  a  strong  case  must  be  alleged 
and  proven  by  the  complainant  to  obtain  relief  where  these 
remedies  are  invoked. 

lY.  Actions  for  the  Dissolution   of  Partnerships  and  for 
AN  Accounting. 

§  453.  The  equitable  jurisdiction  in  partnership  cases.— 

The  aid  of  the  court  of  equity  in  partnership  cases  is  far-reach- 
ing and  important.  Not  that  it  has  any  special  or  different 
powers  or  manner  of  exercising  them  in  this  class  of  cases,  but 
in  the  usual  and  ordinary  application  of  the  powers  and  pro- 
cedure of  the  equity  court  when  it  is  invoked,  every  difficulty 
and  contention  can  be  settled  that  is  not  relievable  in  courts 
of  law.  Courts  of  equity  have  exclusive  jurisdiction  to  decree 
the  dissolution  of  a  partnership,  and  may  order  an  accounting 

1  Todd  V.  Oglebay,  156  Ind.  595,  64  N.  E.  33. 


§  454.]  ACTIONS   FOR    DISSOLUTION    OF    PARTNERSHIP.  699 

and  adjustment  of  its  financial  affairs  and  wind  up  the  busi- 
ness of  the  concern.     By  its  receiver  it  may  take  possession 
of  its  assets  and  its  entire  business,  excluding  all  members 
of  the  firm  by  its  writ  of  injunction,  when  necessary,  from  in 
any  way  transacting  any  of  the  business  of  the  partnership  or 
meddling  with  the  settlement  of  it.    The  dissolution  of  a  part- 
nership and  the  winding  up  of  its  affairs  by  taking  possession 
of  its  business  through  a  receiver,  to  the  exclusion  of  the  mem- 
bers of  the  concern,  is  a  harsh  remedy,  and  the  court  of  equity 
will  not  apply  it  except  in  cases  where  from  their  nature  and 
complex  condition  it  seems  unavoidable.    If  justice  can  be  done 
otherwise  the  remedy  by  receiver  or  injunction  will  not  be  re- 
sorted to.i    As  has  been  said:  "  A  partnership  agreement,  like 
any  other,  is  binding  upon  the  parties;  and  they  must  adhere 
to  its  terms.     Neither  partner  is  at  liberty  to  recede  from  it 
against  the  will  of  the  other  without  a  suflBcient  cause.     Mere 
dissatisfaction  by  one  partner  will  not  justify  him  in  filing  a 
bill  for  a  dissolution  where,  by  their  express  agreement,  it  is 
to  continue  for  a  definite  term,  and  this  court  will  not  inter- 
fere to  dissolve  the  contract  upon  such  grounds." '    But  where 
there  is  a  disagreement  and  dispute  among  the  partners,  and 
it  has  become  so  violent  as  to  prevent  any  beneficial  results  if 
the  relation  were  continued,  equity  will  dissolve  the  partner- 
ship.»     It  is  a  generally  admitted  rule,  without  any  dissent, 
that  the  interference  of  a  court  of  equity  is  one  of  absolute 
necessity  to  preserve  the  business  so  far  as  possible,  protect 
the  interests  of  the  partners,  and  do  justice  and  equity  in  clos- 
ing and  settling  the  affairs  of  the  concern. 

§  454.  Dissolution  of  a  partnership.— Some  of  the  courts 
have  undertaken  to  make  a  distinction  between  what  are  called 
partnerships  at  law,  that  is,  at  the  will  of  the  partners  as  to 
the  time  of  their  existence,  and  partnerships  for  a  fixed  and 
definite  term,  holding  that  the  former  may  be  dissolved  at  the 
will  of  the  partners,  or  any  of  them,  upon  notice  to  the  others, 
without  special  cause,  but  that  the  latter  cannot  be  dissolved 

1  Kenton  v.  Chaplin.  9  N.  J.  Eq.  62.     of  the  mere  desire  of  the  parties,  but 

2  Henn  v.  Welch.  2  Edw.  Ch.  (N.  Y.)     cause  must  be  shown. 

129,180.     In  Bradley  v.  Harkness,  26        3Wha!en  v.  Stephens,  92  III  App. 
Cal'.  76.  78,  it  waS  held  that  the  rela-     235,  61  N.  R  921. 
lion  would  not  be  dissolved  because 


700  ACTIONS    FOK    DISSOLUTION    OF    PARTNERSHIP.  [§  454. 

by  any  voluntary  act  of  the  partners  except  by  mutual  consent, 
nor  by  the  court  of  equity  except  for  good  cause  shovvn.^  But 
this  is  not  the  prevailing  doctrine.  From  the  great  weight  of 
authority  it  may  be  said  that  there  is  no  such  thing  as  an  in- 
dissoluble partnersiiip,  and  it  follows  that  no  court  of  equity, 
nor  any  other  court,  can  force  one  to  continue  as  a  partner 
against  his  will  and  desire;  nor  is  there  any  such  thing  as  a 
court  of  equity  decreeing  specific  performance  of  a  partnership 
to  the  full  and  complete  extent  of  that  remedy.  The  court  of 
equity  would  certainly  refuse  to  compel  parties  to  enter  upon 
a  relation  for  a  term  of  long  continuance  "in  which  it  is  above 
all  things  necessary  that  there  exist  entire  mutual  confidence 
and  the  most  unembarrassed  co-operation."  ^  Cases,  however, 
may  occur  where  the  court  would  interfere,  and  for  a  short 
time  compel  the  existence  of  the  relation;  as  where  a  party 
would  suffer  irreparable  injury  and  damage  if  it  were  allowed 
not  to  go  into  effect  or  to  continue.  And  so  if  justice  requires 
it  under  the  circumstances,  the  court  might  decree  specific 
performance,  but  ordinarily  there  is  a  complete  remedy  at  law 
by  an  action  for  damages  arising  from  the  breach  of  the  con- 
tract.' But  the  doctrine  seems  to  be  well  settled,  as  stated 
in  a  Isew  York  case,  that  "  there  can  be  no  such  thing  as 
an  indissoluble  partnership.     Every  partner  has  an  indefeas- 

1  Black  V.  Sweeting.  121  III.  67.     In  ciple  upon  which  the  decision  stands 

Burbin  V.  Barber  &  Barney.  14  Ohio,  is  equality  — a   principle   in    which 

311,  315,  the  court  say:  "It  is  within  equity  'peculiarly  delighteth.'"     In 

the  power  of  the  courtto  say  at  what  Walker  v.  Whipple,  58  Mich.  476, 478, 

time  a  partnership  contract  shall  be  referring    to    this    doctrine,    Judge 

rescinded  and  ended  as  between  the  Campbell  said:  "The  farthest  courts 

parties,  for  there  is  nothing  in  the  have  gone  in  this  direction  occurs  in 

nature  of  a  partnership  contract  to  cases   where,    by  the  terms  of  the 

restrain  the   court   from    trying    a  partnership  agreement,  the  time  for 

question  of  violation   by  the  same  its  duration  was  limited,  and  before 

rules  applicable  to  any  other  agree-  the  expiration  thereof  one  of  the  par- 

ment.     We  may  admit  that  the  part-  ties  has  dissolved  the  partnership, 

nership   was  not  dissoluble  at  the  But  in  such  cases  there  has  been  a 

mere  will  of  either  party;  and  that  breach  of  the  contract. and  the  dam- 

the  period  of  its  termination,  by  the  ages  allowed  are  such  as  were  the 

terms  of  the  article,  was  at  the  com-  consequences  of  such  breach." 

pletion  of  the  job  of  work;  and  yet  ^Parsons  on  Partnership,  sec.  163. 

that  weakens  not  the  position  taken,  ^  Scott  v.  Payment,  L.  R.  7  Eq.  113; 

nor  does  it  touch  the  grounds  upon  Ramsbottom  v.  Parlier,  6  Madd.  12. 
wliich  it  is  based.     The  great  prin- 


TOl 


§  455.]  ACTIONS    FOR    DISSOLUTION    OF    PARTKEUSHIP. 

ible  rin-ht  to  dissolve  the  partnership,  as  to  all  future  con- 
tracts "bv  publishing-  his  own  volition  tothateff-^ct;  and  after 
such  publication,  the  other  meml>ers  of  the  firm  have  no  ca- 
pacity to  bind  him  by  any  contract.  Even  where  partners 
covenant  with  each  other  that  the  partnership  shall  continue 
seven  vears,  either  partner  may  dissolve  it  the  next  day  by 
proclaiming  his  determination  for  that  purpose;  the  only  con- 
sequence being  that  he  thereby  subjects  himself  to  a  claim  for 
damac.es  for  a  breach  of  his  covenant.  The  power  given  by 
one  partner  to  another  to  make  joint  contracts  for  them  both 
is  not  only  a  revocable  power,  but  a  man  can  do  no  act  to  di- 
vest himself  of  the  capacity  to  revoke  it." '  ^     i    ,  v. 

8  455.  The  equitable  remedy.- The  remedy  afforded  by 
the  court  of  equity  is  based  upon  fraud.    This  does  not  include 
merely  some  fraudulent  appropriation  of  the  partnership  tunds 
or  the  keeping  of  fraudulent  accounts,  but  it  includes  any  fail- 
ure to  grant  to  a  copartner  any  right,  equitable  or  legal,  that 
he  is  entitled  to  by  reason  of  the  relation.     As,  for  example, 
"each  partner  has  an  equal  right  to  take  part  in  the  manage- 
ment of  the  business  of  the  firm;  although  one  of  them  may 
have  an  interest  only  in  the  profits  and  not  in  the  capital,  yet 
his  ri^-hts  are  involved  in  the  proper  conduct  of  the  affairs  ot 
the  firm  so  that  profits  may  be  made.     So  each  partner  has  an 
equal  vWht  to  information  about  the  partnership  affairs  and  to 
free  access  to  its  books."  ^     One  partner  will  not  be  permitted 
to  exclude  his  copartner  from  as  full  a  share  in  the  manage- 
ment of  the  partnership  as  he  who  assumes  that  power  himseU 
enioys      It  is  universally  admitted  that  partners  are  bound  to 
be  true  and  faithful  to  each  other;  not  excluding  the  judgment 

.Skinner  v.  Dayton,  19  John.  (N.  to  be  subserved  by  compelling  a  con- 

Y)L    5:W;  Sen'mer's  Appeal,  58  tinuance  of  the  relation  and  the  fact 

Pa    St    l>5.     m   Solomon   v.   Kirk-  that  a  contract  will   be  broken  by 

wood  5.>  Mich.  257.  260,  Judge  Cooley  thedissolutionisnoargumenta-^ainst 

nuoted   with   approval    the  case  of  the  right  to  dissolve    Most  cont  acts 

Skinner  v.  bJL     "There  may  be  may  be  broken  at  pleasure   subject 

oae"n  w.nch  equity  would  enjoin  however  to  responsib.lity  in  damage, 

a  disso  utioti  for  a  time,  when  the  And  that  responsibility  would  exist 

circumstances  w  re  such  as  to  make  in  breaking  a  contract  of  partnership 

it  snecialiy  injurious;  but  no  question  as  in  other  cases  ^,    ^,,    „„ 

ore^llta'ble-' restraint   arises   here.  J  ^tt/iaf "' 

When  one  partner  becomes  dissatis-  82,  x5U  Ati.  16V. 
fied  there  is  commonly  no  legal  policy 


7  '2  ACTIONS   FOK   DISSOLUTION    OF    PARTNERSHIP.  [§  455 

of  any  one,  but  acting  upon  the  joint  opinion  of  all  its  mem- 
bers. Any  infringement  of  the  rights  and  profits  of  a  copartner 
by  one  of  the  partners  of  the  concern  is  fraudulent  as  well  as 
illegal,  and  so  a  continuation  of  such  infringements  —  as  re- 
fusing a  partner  the  examination  of  the  books  and  free  access 
to  them;  excluding  him  from  free  access  to  any  department 
of  the  business;  assuming  b}"  one  of  the  partners  or  arrogat- 
ing to  himself  full  control  or  management  of  any  branch  of 
the  business  to  the  exclusion  of  his  copartners  —  will  not  be 
permitted  by  a  court  of  equity,  and  if  persisted  in  the  court 
will  lend  its  aid  and  relieve  the  partner  suffering  from  such  a 
condition,  even  to  the  extent  of  appointing  a  receiver  to  take 
full  charge  and  management  of  the  business  of  the  concern, 
and  by  an  injunction  enjoining  him  from  any  participation  or 
interference  in  the  business.'  If  it  can  be  avoided  and  justice 
done  between  the  parties,  the  equity  court  will  not  usually  re- 
sort to  the  harsh  remedy  of  appointing  a  receiver  or  issuing  its 
injunction;  but  where  a  partner  is  entitled  to  a  dissolution  and 
the  case  is  one  in  which,  in  the  discretion  of  the  court,  it  is  de- 
termined that  to  do  justice  and  equity  it  is  necessar}'^  that  the 
court  should  put  its  hand  upon  the  concern,  collect  and  man- 
age its  assets  and  business,  make  a  just  and  fair  accounting  be- 
tween the  parties,  pay  and  discharge  its  debts  and  wind  up  its 

iln  Ernst  v.  Harris,  1  Turner  &  are  to  act  upon  the  joint  opinion  of 

Russ.   496,   Lord   Eldon   said:    "The  all,  and  the  discretion  and  judgment 

most  prominent  point  on  which  the  of    any    one    cannot    be    excluded, 

court  acts  in  appointing  a  receiver  "What  weight  is  to  be  given  to  it  is  an- 

of  a  partnership  concern  is  the  cir-  other  question."     In  an  early  English 

curastance  of    one   partner   having  case,  Wilson  v.  Greenwood,  1  Swanst. 

taken  upon  himself  the  power  to  ex-  Ch.  Rep.  471, 480,  the  chancellor  said: 

elude  another  partner  from  as  full  a  "And  as,  in  the  ordinary  course  of 

share  in   the   management    of    the  trade,  if  any  of  the  partners  seek  to 

partnership  as  he  who  assumes  that  exclude  another  from  taking  that 

power  himself  enjoys.      This  prin-  part  in  the  concern  which  he  is  en- 

ciple    seems  to   be    universally   ap-  titled  to  take,  the  court  will  grant  a 

proved  by  the  authorities."     Katz  v.  receiver;  so  in  the  course  of  winding 

Brewington,  71  Md.  79,  83.     In  Ein-  up  the  affairs  after  the  determina- 

stein  V.  Schnebly,  89  Fed.  540,  553,  tion  of  the  partnership,  the  court,  if 

the  court  in  discussing  this  question  necessary,   interposes  on   the   same 

quotes  with  approval  the  following  principle."    Harris  v.    Harris  (Ala., 

language:      "In     all     partnerships,  1902),  31  So.  355;  Ryraan  v.  Ryraan's 

whether  it  is  expressed  in  the  deed  Ex'r,  3  Va.  Sup.  Ct  Rep.  599,  40  S.  E. 

or  not,  the  partners  are  bound  to  be  96;  Hanna  v.  McLaughlin,  158  Ind. 

true  and  faithful  to  each  other.    They  292,  6^  N.  K  475. 


§  456.]  ACTIONS    FOR   DISSOLUTION    OF    PARTNERSHIP.  70b 

affairs  and  business,  the  court  will  appoint  a  receiver,  and  if 
necessary  issue  its  writ  of  injunction.^ 

If  the  court  of  equity  once  assumes  jurisdiction  of  the  cause, 
it  will  try  and  determine  the  whole  of  the  controversy,  and, 
if  necessary,  will  award  damages,  if  it  would  be  just  and 
equitable  to  do  so.  If  it  should  appear  to  the  court  that  there 
is  no  just  or  equitable  reason  for  dissolving  the  partnership, 
that  the  complainant  has  without  good  cause  arbitrarily  and 
unjustly  refused  to  continue  the  business  of  the  concern,  and 
there  is  no  reason  why  the  court  of  equity  should  retain  the 
case  for  the  purpose  of  the  accounting,  it  will  dismiss  the  bill 
and  leave  the  parties  to  their  remedy  at  law. 

§  45fi.  Some  conclusions.— From  the  weight  of  authority 
it  may  be  concluded  that  no  partnership  is  indissoluble ;  that  be- 
cause of  its  peculiar  nature,  existing  as  it  does  and  accomplish- 
ing its  objects  in  the  confidence  and  joint  exertions  of  its 
members,  there  can  be  no  separate  thought,  plan  or  action  in 
carrying  on  its  business.  But  while  this  is  true,  a  partner  can 
no  doubt  refuse  to  continue  the  relation  and  thus  dissolve  the 
partnership,  but  he  cannot  do  so  to  the  injury  of  his  copart- 
ner without  just  cause,  and,  if  he  does,  he  will  be  liable  for 
whatever  damage  his  acts  occasion;  on  the  other  hand,  if  his 
copartner  has  been  guilty  of  acts  which  the  court  would  con- 
sider fraudulent  or  good  cause  for  a  dissolution  of  the  partner- 
ship, he  would  not  be  subjected  to  damages  for  thus  closing 
the  relation,  but  in  equity  would  be  entitled  to  a  decree  of  the 
court  for  a  dissolution  and  an  accounting,  with  the  exercise 

I  In  Law  V.  Ford,  2  Paige  Ch.  (N.  Y.)  such  a  case  the  court  would  direct 
310,  the  chancellor  said:  "  As  a  gen-  the  receiver  to  apply  the  partnership 
eral  rule,  each  partner  has  an  equal  property  and  funds  to  the  payment 
right  to  the  possession  of  the  part-  of  all  the  debts  of  the  firm  ratably, 
nership  effects,  and  to  collect  and  without  giving  a  preference  to  the 
apply  them  in  satisfaction  of  the  favorite  creditors  of  either  partner." 
debts  of  the  firm;  that  where  either  In  Sloan  v.  Moore.  37  Pa,  St.  217,  the 
party  hadaright  to  dissolve  the  part-  court  said:  "It  is  difficult  to  see  how 
nership,  and  the  agreement  between  the  necessity  of  a  receiver  can  be 
the  parties  made  no  provision  for  avoided,  on  the  dissolution  of  a  part- 
closing  up  the  concern,  it  was  of  nership,  when  the  parties  cannot 
course  to  appoint  a  manager,  or  re-  agree  as  to  the  disposition  of  the 
ceiver,  on  a  bill  filed  for  that  pur-  joint  effects,  for  no  one  has  a  right 
pose,  if  they  could  not  arrange  the  to  their  possession." 
matter  between  themselves.   That  in 


704 


ACTIONS    FOli    DISSOLUTION    OF    PARTNERSHIP. 


[§  457 


of  the  usLi.il  incidental  powers  to  carry  out  the  object  of  the 
bill.  It  does  not  follow  that  to  support  this  jurisdiction  the 
fault  or  reasons  for  dissolution  must  be  entirely  chargeable  to 
the  defendant,  for  both  parties  may  be  found  derelict  in  duty, 
anil  the  reason  for  continuing  the  relation  clearly  attributable 
to  the  plaintiff  as  well  as  the  defendant.  In  such  case^  the 
court  will  not  dismiss  the  bill,  unless  where  the  plaintiff  is 
wholly  at  fault,  and  not  then  if  the  defendant  seeks  to  have  a 
dissolution  by  filing  a  cross-bill  or  the  court  finds  the  answer 
sufficient  to  hold  the  case  and  settle  the  controversy  by  a  de- 
cree appropriate  and  just.^ 

§457.  The  pleadings  —  The  bill  of  complaint. —  There  is 
no  particular  form  of  pleadings  in  this  class  of  cases.  The  bill 
of  complaint  should  show  b}^  its  stating  part  the  formation  of 


1  In  Blake  v.  Dorian,  1  Greene 
(Iowa),  5o7,  it  was  held:  "A  court  of 
equity  may  dissolve  a  partnership 
■when  difficulties  between  copartners 
are  of  so  serious  a  nature  as  to  ren- 
der the  continuance  of  the  company 
Impracticable,  and  injurious  to  one 
or  both  of  its  members."  The  part- 
nership in  this  case  was  formed  to 
manufacture  brick.  The  court  in 
discussing  tlie  question  say:  "The 
nature  of  the  business  for  which  the 
copartnership  was  created  was  such 
that  not  only  capital,  skill  and  labor 
were  required  to  carry  on  the  busi- 
ness, but  mutual  confidence  and  good 
faith,  without  which  the  copartner- 
ship should  and  would  be  forced  to 
cease.  And  though,  in  the  language 
of  the  books.  '  the  court  will  require 
a  strong  case  to  be  made  out  before 
it  will  dissolve  a  partnership  and  de- 
cree a  sale  of  the  whole  concern,' 
and  although,  from  the  depositions 
in  this  case,  it  would  be  difficult  to 
decide  which  of  the  parties  is  most 


ners.  It  is  not  in  the  power  of  any 
court  to  decree  a  continuance  of  the 
business  pursuant  to  the  terms  of 
the  agreement,  without  at  the  same 
time  assuming  the  high  prerogative 
of  decreeing  a  personal  reconcilia- 
tion and  restoration  of  mutual  con- 
fidence. .  .  .  It  is  sufficient  that 
the  defendant  BlaUe's  conduct 
amounted  to  an  exclusion  of  the 
complainant  from  his  proper  agency 
in  the  business,  and  that  the  con- 
duct of  both  parties  was  of  itself 
evidence  of  a  substantial  dissolu- 
tion, leaving  it  only  for  a  court  of 
chancery  to  go  through  the  form  of 
decreeing  a  dissolution,  and  settle- 
ment of  the  business  of  the  partners 
in  a  manner  best  calculated  to  re- 
store the  parties  to  their  original 
rights,  and  each  party  to  an  equi- 
table participation  in  the  profits  and 
losses.  It  is  urged  that  the  com- 
plainant does  not  come  into  court 
with  clean  hands,  for  the  reason 
that  he  was  first  in  the  wrong.     We 


in  the  wrong,  there  is  no  doubt  that    see  no  necessary  connection  between 


equity  demands  a  decree  of  dissolu- 
tion in  this  case,  as  a  continuance  of 
the  copartnership  would  have  been 
impracticable,  and  would  have  in 
the  end  been  disastrous  to  the  inter- 
ests of  one  if  not  both  of  the  copart- 


the  wrong  first  committed  by  com- 
plainant and  the  subsequent  wrong- 
ful acts  of  defendant.  And  from  this 
argument  it  would  seem  that  the 
causes  of  dissolution  are  strength- 
ened,    both    parties    having     been 


§  457. J  ACTIONS    FOR    DISSOLUTION    OF    PARTNERSHIP.  705 

the  copartnership,  that  the  partners  composing  it  entered 
i:;pon  the  business  of  the  concern,  the  articles  of  copartner 
shij),  where  in  writing,  should  be  set  forth,  and  if  the  agree- 
ment is  extensive  and  difficult  to  set  forth  in  substance,  a  copy 
of  it  ma}'  be  appended  to  the  bill  and  referred  to  as  an  exhibit, 
making  it  a  part  of  the  bill  of  complaint.  If  the  agrtement 
be  by  parol,  it  should  be  set  out  by  pro|»er  allegations  so  fully 
that  the  court  can  determine  whether  a  copartnership  was 
actually  formed,  and  can  construe  the  agreement  and  deter- 
mine the  rights  of  the  several  parties  to  it.  It  must  appear 
that  the  relation  actually  existed,  and  that  the  parties  entered 
upon  the  execution  of  the  agreement.  Good  cause  for  dissolv- 
ing the  copartnership  must  also  be  set  out  in  the  bill  of  com- 
plaint by  alleging  fully  the  reasons  depended  upon  and  with 
such  certainty  that  it  can  be  fully  understood  by  the  court  and 
opposite  party,  and  so  that  each  alleged  cause  may  be  traversed 
or  admitted  by  the  defendant  m  his  answer.  If  an  in  junction 
or  receiver  is  prayed  for,  the  particular  facts  upon  which  the 
plaintiff  relies  for  the  order  or  appointment  must  be  set  forth 
with  certainty,  and,  if  not  positively  averred,  shown  by  affida- 
vits and  proofs  attached  to  the  bill. 

The  prayer  may  be  for  a  dissolution  of  the  partnership,  and 
an  injunction  and  a  receiver  if  desired.  It  should  also  ask  for 
an  accounting  as  to  all  the  partnership  property  and  assets. 
There  should  also  be  appended  a  prayer  for  general  relief.' 
The  object  of  the  bill  need  not  be  restricted  to  a  dissolution  of 
the  partnership  and  an  accounting  of  the  partners;  but  when 
the  property  of  the  concern,  by  reason  of  fraudulent  acts  of  the 
partners,  has  become  involved  in  the  transactions  of  third 
persons,  they  may  be  made  parties  and  the  whole  matter  set- 
tied  and  determined  in  the  one  suit;  as  where  property  of  the 
partnership  has  been  fraudulently  disposed  of  to  third  parties, 
they  may  be  decreed  to  hold  it  in  trust  for  the  partnership.'* 

guilty  of  acts  inconsistent  with  the  The  prayer  should  ask  for  an  account- 
continuance  of  their  copartnership  ing,  but  if  dissolution  of  the  partner- 
relations."  ship  is  prayed  for,  an  accounting  will 
1  As  to  the  sufficiency  of  the  bill  be  presumed.  Cottle  v.  Leitch,  35 
see  Campbell  v.  Cark.  42  C.  C.  A.  123,  Cal.  4U.  But  see  Edwards  v.  Rem- 
101  Fed.  972;  Havner  v.  Stephens.  22  ington,  60  Wis.  33. 
Ky.  L.  Rep.  498,  58  S.  W.  372:  Wood  2  Campbell  v.  Clark,  42  C.  C.  A.  142, 
V.  Wood,  50  W.  Va  570,  40  S.  E.  416.  101  Fed.  972. 
45 


706  ACTIONS    WHERE    DAMAGES    ARE    AWARDED.  [§§  458,  459. 

§  458.  The  defenses. —  The  defenses  are  not  unlike  the  usual 
and  ordinary  defenses  in  equity.  They  may  be  interposed  by 
demurrer,  plea  or  answer,  as  the  circumstances  and  facts  war- 
rant. If  substantive  relief  is  desired  by  the  defendant,  a  cross- 
bill should  be  filed.  Where  a  bill  for  an  accounting  between 
partners  failed  to  allege  any  partnership,  past  or  present,  be- 
tween complainant  and  defendants,  or  that  the  complainant 
was  a  member  of  a  partnership  existing  between  himself  and 
defendants,  or  that  any  such  partnership  had  been  dissolved,  it 
was  held  insufficient  and  subject  to  a  demurrer.^  By  the  answer 
the  defendant  may  deny  that  a  partnership  ever  existed  as 
alleged  in  the  bill  or  otherwise;  allege  that  there  are  no  rea- 
sons for  the  dissolution  and  accounting;  deny  the  several  alle- 
gations of  facts  in  the  bill  of  complaint  relied  upon  by  the  com- 
plainant as  causes  for  a  dissolution,  and  set  up  facts  explaining 
the  situation  from  which  the  mference,  that  there  is  no  cause 
for  a  dissolution,  may  be  fairly  drawn.  By  the  answer  the  de- 
fendant may  traverse  all  the  material  allegations  of  the  bill. 

Y.  Actions  Where  Damages  Are  Awarded. 

§  459.  As  an  equitable  remedy. —  Actions  for  the  awarding 
of  damages  are  generally  legal  and  not  equitable.  The  award- 
ing of  damages  in  equity  is  rather  incidental  to  the  equity  pro- 
cedure than  otherwise  and  not  a  direct  remedy.^  There  are 
classes  of  cases,  however,  in  which  pecuniary  award  is  the  re- 
lief directly  sought  in  the  equity  case,  but  the  court  must 
alw^ays  have  in  hand  a  case  belonging  to  the  equitable  juris- 
diction in  order  to  grant  the  relief;  as,  for  example,  where  it 
is  sought  to  distribute  a  fund  in  the  hands  of  a  trustee  amona' 
the  legal  and  equitable  beneficiaries;  where  an  accounting  by 
partners,  or  those  in  fiduciary  relations,  is  the  object  of  the 

iTutwiler  v.  Dugger,  127  Ala.  191,  which  the  damas^es  would  be  appli- 

28  So.  677.  cable  or  subsidiary."    As  for  fraudu- 

2  Equity  has  no  general  jurisdic-  lent  execution  of  a  trust.  Morrison 
tion  to  grant  money  decrees.  Kint-  v.  Mayer,  63  Mich.  238.  In  Miller  v. 
iier  V.  Pickard,  67  Mich.  125,  127.  Cornwell,  71  Mich.  270,  the  court 
In  Bourget  v.  Monroe,  58  Mich,  563,  awarded  damages  for  injury  ce- 
lt was  said:  "There  is  no  authority  casioned  by  the  mamtenance  of  a 
lor  holding  that  equity  can  grant  mill-dam.  Cornwell  Mfg.  Ca  v. 
•  lamages  unless  there  is  some  case  of  Swift,  89  Mich.  503. 
ei^uitable  relief  made    out   also,  to 


§  459.] 


ACTIONS   WHERE   DAMAGES    ARE    AWARDED. 


7or 


bill;  where  the  creditor  claims  an  equitable  lien  upon  prop- 
erty which  has  been  fraudulently  disposed  of  by  the  debtor  to 
hinder  and  defraud  his  creditors,  and  prays  the  court  to  de- 
clare his  lien  valid  and  subsisting,  and  to  subject  the  property 
to  it  as  in  case  of  creditors'  bills;  cases  for  the  foreclosure  of 
mortgages,  real  or  personal,  and  for  a  decree  to  sell  the  prop- 
erty for  the  amount  found  due;  an  action  to  enforce  a  vendor's 
lien  and  determine  the  amount  thereof  and  sell  the  land.  It 
is  a  general  rule,  however,  and  obtains  in  all  equity  cases,  that 
where  an  equity  court  has  once  obtained  jurisdiction  of  a  cause, 
it  will  settle  and  determine  the  whole  controversy;  and  if  to 
afford  equitable  relief  and  to  do  justice  between  the  parties  it 
should  become  necessary  and  just  to  award  damages,  the  court 
will  by  its  decree  make  the  award  and  determine  how  it  shall 
be  satisfied.  And  where  the  court  denied  the  relief  specially 
sought  for  in  the  bill  of  complaint,  and  for  which  purpose  it 
assumed  jurisdiction,  it  has  been  held  that  any  relief  deemed 
necessary  to  settle  the  litigation  and  which  the  pleadings  will 
justify  may  be  granted.^     While  a  court  of  equity  will  not  in 


1  Evans  V,  Kelly,  49  W.  Va.  181,  38 
S.  E.  497;  Atkinson  v.  Felder,  78 
Miss.  83,  29  So.  767.  In  Price  v.  Oak- 
field,  etc.  Co.,  87  Wis.  536.  24  L.  R.  A. 
333,336,  itwasheldtliat,  "Equity  hav- 
ing thus  acquired  jurisdiction  in  the 
case,  it  may  retain  the  same  and  ad- 
judge to  the  plaintiff  reasonable  and 
adequate  damages  for  past  injuries." 
Low  V.  Low,  177  Mass.  306,  59  N.  E. 
57;  Lyle  v.  Addicks,  62  N.  J.  Eq.  123, 
49  Atl.  1121;  Casev.  Minot,  158  Mass. 
577,  22  L.  R  A.  536.  In  Milkman  v. 
Ordway,  106  Mass.  232,  253,  it  was 
said:  "It  is  well  settled  with  little 
or  no  conflict  of  authority,  that  when 
a  defendant  in  a  bill  in  equity  disen- 
ables himself,  pending  the  suit,  to 
comply  with  an  order  for  specific  re- 
lief, the  court  will  proceed  to  afford 
relief  by  way  of  compelling  compen- 
sation to  be  made;  and  for  this  pur- 
pose will  retain  the  bill,  and  de- 
termine tiie  airiount  of  such  com- 
pensation, although  its  nature  and 
measure  are  precisely  the  same  as 


the  party  would  otherwise  recover 
as  damages  in  an  action  at  law.  Tiie 
character  of  the  investigation  is, 
therefore,  not  an  insuperable  objec- 
tion to  this  mode  of  proceeding. 
There  is  also  authority,  though  ap- 
parently questioned  in  the  English 
decisions,  for  the  application  of  the 
same  rule  when  the  disability  was 
caused  before  suit,  but  after  the 
date  of  the  agreement  relied  on.  In 
this  country  it  seems  to  be  generally 
accepted  as  the  rule,  provided  the 
plaintiff  brought  his  bill  without 
knowledge  of  the  disability,  in  good 
faith  seeking  equitable  relief,  sup- 
posing, and  having  reason  to  sup- 
pose, himself  entitled  to  such  equi- 
table relief.  In  the  opinion  of  a  ma- 
jority of  this  court,  there  is  equal 
ground  in  equity  for  applying  the 
same  rule,  with  the  same  qu.ilifica- 
tions,  to  all  cases  where  a  defect  of 
title,  right  or  capacity  in  the  defend- 
ant to  fulfill  his  contract  is  devel- 
oped by  his  answer,  or  in  the  coui'se 


708 


ACTIONS    WHERE    DAMAGES    ARE    AWARDED.  [§  459. 


the  first  instance  assume  jurisdiction  of  a  cause  which  can  be 
adequately  determined  by  a  money  judgment,  nevertheless 
having,  because  of  an  alleged  equitable  case  in  the  bill  of  com- 
plaint, which  has  failed  upon  the  hearing,  once  assumed  juris- 
diction, it  will  if  it  can  do  so  without  disregard  of  rules  of 
right,  by  its  decree  award  damages  justly  and  equitably  due 
either  or  any  of  the  parties,  that  the  litigation  may  be  fully 
settled  and  the  controversy  ended. 


of  the  hearing,  or  upon  reference  of 
his  title  or  capicity.  after  an  order 
of  fulfillment.  The  rule  assumes,  of 
course,  a  sufficient  contract,  per- 
formance, or  an  offer  to  perform  by 
the  plaintiff,  and  every  other  ele- 
ment requisite,  on  his  part,  to  the 
cognizance  of  liis  case  in  chancery; 
and  that  the  special  relief  sought  is 
defeated,  not  by  any  defense  or 
counter-equities,  but  simply  because 
an  order  therefor  would  be  fruitless, 
from  the  inability  of  tlie  defendant 
to  comply.  The  jurisdiction  is  fixed 
by  establishing  the  equitable  right 
of  the  plaintiff.  Relief  miglit  then 
be  given  by  a  decree  in  the  alterna- 
tive, awarding  damages  unless  the 
defendant  should  secure  the  specific 
performance  sought.  In  many  cases 
this  would  be  an  effective  and  proper 
course;  inasmuch  as  the  defendant, 
although  not  having  himself,  at  the 
time,  the  title  or  capacity  requisite 
for  such  performance,  might  be  able 


to  procure  it  otherwise.  The  juris- 
diction is  not  lost  when  the  court, 
instead  of  such  alternative  decree, 
determines  to  proceed  directly  to  an 
award  of  damages  or  compensation. 
The  peculiar  province  of  a  court  of 
chancery  is  to  adapt  its  remedies  to 
the  circumstances  of  each  case  as 
developed  by  the  trial.  It  is  acting 
within  that  province  when  it  admin- 
isters a  remedy  in  damages  merely, 
in  favor  of  a  plaintiff  who  fails  of 
other  equitable  relief,  to  which  he  is 
entitled,  without  fault  on  his  own 
part.  The  diversity  of  practice  in 
this  respect,  and  the  doubt  as  to  the 
jurisdiction,  we  think  must  have 
arisen  less  from  the  nature  of  the 
relief  to  be  afforded  than  from  the 
character  of  the  means  for  determin- 
ing the  amount  of  compensation  to 
be  rendered."  Woodbury  v.  Marble- 
head,  eta  Ca,  145  Mass.  509;  Brandd 
V.  Grace,  154  Mass.  210. 


CHAPTER   XXIIL 

REMEDIES  FOR  THE  ENFORCEMENT  OF  LIENS  OR  SUBJECTING 
CERTAIN  SPECIFIC  PROPERTY  TO  THE  PAYMENT  OF  OBLI- 
GATIONS; AND  INCIDENTAL  THERETO  THE  RIGHT  OF  RE- 
DEMPTION AND  BILLS  TO  REDEEM. 


L  Actions  fob  thk  Foreclosure 

OP   MORTaAGES  OR  PLEDGES. 

§  460.  Mortgage  foreclosura 

461.  The  nature  and  purpose  of  the 

foreclosure, 

462.  When  the  right  to  foreclose 

accrues. 

463.  Some  linaitations  and  excep- 

tions. 

464.  The  forum. 

465.  Parties  to  the  action — Com- 

plainants. 

466.  Defendants. 

467.  Tile  bill  of  complaint. 

468.  Defenses. 

469.  Compelling  foreclosura 

470.  Defenses  —  By  cross-bill. 

471.  Proceedings  in  foreclosure  be- 

fore final  hearing. 

472.  The  hearing. 

473.  The  decree  and  order  confirm- 

ing sala 

474.  Order  of  sale  —  Inverse  order 

of  alienation. 

475.  Redemption. 

476.  Redemption  of  entire  mort- 

gage and  not  a  part. 

477.  The  bill  to  redeem. 

478.  Parties  to  a  bill  to  redeem. 

(1)  Complainants. 

(2)  Defendants. 

479.  The  prayer  of  the  bill 

480.  The  decree. 

481.  Statute    of   limitations  — 

Laches. 

II.  Marshaling  Securities. 

482.  The  equitable  doctrina 


§  483.  When  doctrine  not  observed — 
Subrogation. 

484.  When  paramount  creditor  re- 

leases security  held  by  him 
alone. 

485.  Enforcement  of  the  doctrine. 


IIL  Creditors'  Bills  and  Bills  in 
Aid  of  Execution. 

486.  Creditors'  suits  —  Kinds  and 

object  of. 

487.  (1)  Judgment  creditors'  bills. 

488.  Some  requisites  to  the  filing 

of  the  bill. 

489.  The  judgment  —  The  execu- 

tion and  return. . 

490.  Objections  to  the  regularity 

of  the  judgment. 

491.  (3)  Bills  in  aid  of  execution, 

492.  Sufficiency  of  lien  by  attach- 

ment. 

493.  Parties  to  creditors'  billa 

(1)  Plamtiffa 

(2)  Defendants. 

494.  The  form  of  the  bill. 

495.  Bill    for    double    purpose,   to 

reach  equitable  assets  and 
in  aid  of  execution. 

496.  The  defense  —  Demurrer  — 

Plea. 

497.  The  answer. 

498.  Injunction  and  receiveii 

499.  Lien    obtained   by  creditor's 

suit  —  Priority, 

500.  The  decree. 

501.  The  form  of  the  decrea 


710  EEMEDIES    FOR    ENFOKOEMENT   OF    LIENS,  ETO.  [§  460. 


I.   Actions  for  the  Foreclosure  of  Mortgages  or  Pledges. 

§  460.  Mortgage  foreclosure — The  equity  jurisdiction. — 

A  mortgage  at  common  law  was  a  conditional  sale  of  the  land 
mortgaged  and  could  only  be  defeated  by  a  performance  of 
the  condition;  that  is,  by  the  payment  of  the  debt  on  the  day 
stipulated  for  payment.  If  this  condition  was  not  performed, 
the  title  became  absolute  in  the  mortgagee,  the  effect  of  non- 
payment being  a  forfeiture  of  the  legal  title  of  the  mortgagor. 
The  law  applied  the  strict  rules  applicable  to  every  condi- 
tional conveyance.  Because  of  this  harsh  and  unrelenting 
remedy  of  the  law,  the  equity  court  developed  an  equitable 
jurisdiction  founded  upon  the  intention  of  the  parties  rather 
than  the  form  of  the  contract.  Out  of  this  development  came 
the  application  of  the  maxim  of  equity,  "Equity  regards  sub- 
stance rather  than  form."  Equity,  looking  at  the  substance  of 
the  contract,  determined  that  the  mortgage  was  executed  not 
as  a  convej^ance  of  the  lands  described  in  it,  but  as  a  security 
for  the  money  borrowed.  And  if  the  mortgagor  satisfied  the 
conditions  of  the  mortgage  by  a  payment  of  the  amount  due, 
even  after  the  day  fixed  by  the  mortgage  for  the  payment, 
the  title  to  the  mortgaged  premises  should  not  be  forfeited, 
but  by  this  payment  the  mortgagor  might  redeem  his  lands. 
Equity  abhors  a  forfeiture,  and  will  always  insist  that  a  per- 
formance of  the  substance  shall  govern  the  stipulations  and 
covenants  of  form.  This  equitable  privilege  extended  to  the 
mortgagor  to  redeem  after  the  time  fixed  for  payment  is  called 
the  "equity  of  redemption,"  a  privilege  that  has  grown  to  be 
a  recognized  estate  in  the  lands  mortgaged;  a  property  inter- 
est which  may  be  held  by  its  possessor,  and  is  capable  of  being 
conveyed  by  him  to  others  even  after  default  or  non-payment 
of  the  mortgage. 

In  Gorham  v.  Ai^nold^  it  was  held  that  this  estate  was  a 
legal  estate  subject  to  levy  and  execution.  The  court  say: 
"We  have  used  an  antiquated  phrase  to  describe  an  interest 
which  has  always  been  treated  as  a  legal  estate  by  our  tribu- 
nals and  which  has  now  been  divested  of  all  the  former  diffi- 
culties which  may  have  made  it  anomalous."    This  estate  is 

» 23  Mich.  247,  250. 


§  4f)0.]  REMEDIES    FOR    ENFORCEMENT    OF    LIENS,  ETC.  711 

carefully  guarded  by  the  equity  court.  While  it  may  be  con- 
veyed by  the  mortgagor  by  a  deed  of  conveyance,  a  mortgage 
which  undertakes  by  its  terms  to  forfeit  it  on  default  of  pay- 
ment would  be  declared  void.^  And  so  it  has  been  said  that 
no  mortgagee,  in  the  strict  sense  of  the  term,  could  transfer 
title  to  a'ny  part  of  the  mortgaged  premises  free  and  clear  of 
the  right  to  redeem.^  "The  whole  system  of  equity  jurispru- 
dence presents  no  finer  example  of  the  triumph  of  equitable 
principles  over  the  arbitrary  and  unjust  dogmas  of  the  common 
law  than  this." "  So  thoroughly  and  universally  is  the  prin- 
ciple recognized  by  the  equity  court,  that  substance  and  not 
form  usuaUy  governs,  that  a  deed  absolute  upon  its  face  exe- 
cuted as  a  security  by  the  grantor  is  held  to  be  a  mortgage 
and  not  to  pass  title  to  the  land  until  the  equity  of  redemp- 
tion which  the  court  recognizes  has  been  foreclosed.  The  in- 
tention of  the  parties  that  the  deed  shall  be  held  to  secure  the 

1  Batty  V.  Snook,  5  Mich.  231. 

2  Gorham  v.  Arnold,  22  Mich.  247, 
251;  post  §475. 

3  1  Pom.  Eq.  Jur.  382;  Fitzhugh  v. 
Maxwell,  34  Mich.  140.    In  Hazeltine 
V.  Granger,  44  Mich.  503,  505,  it  was 
said:     "Every   mortgage    made    in 
common   law  form   contains  words 
whereby,  if  applied  as  they  read,  pos- 
session would  belon  g  to  the  mortgagee 
and  his  title  would  become  absolute 
by  default.  The  whole  aim  of  equity 
was  to  arrest  this  forfeiture  and  not 
to  allow  the  language  of  a  mortgage 
to  have  any  force  against  the  equity 
of    redemption.     The    statute    is    a 
further  step  in  the  same  direction 
for    the  protection    of    mortgagors 
against  agreements  which,  as  liter- 
ally drawn   and  as  theretofore  ex- 
pounded,  were  deemed   dangerous, 
and  against  public  policy.     The  lan- 
guage of    this   mortgage  expressly 
granting  rents  and  profits  on  default 
is  no    stronger  than   the    previous 
words  of  grant,  and  is  really  nar- 
rowed.    It  was  no  doubt  intended  to 
go  further  and  to  evade  the  statute. 
If  it  had   contained  an  agreement 
that  ejectment  should  lie,  it  could 


not  very  well  be  enforced  against 
the  clause  of  the  statute  proliibiting 
it.     It  can  have  no  greater  force  in 
enlarging  the  jurisdiction  of  equity 
to  appoint  receivers,  which  we  held 
in  Wagar  v.  Stone  had  been  abol- 
ished.    Any  such  attempt  to  create 
a  forfeiture  is  contrary  to  equity 
and  equity  will  not  enforce  it.     The 
same    principle     which    makes    all 
original  agreements  void  which  de- 
stroy the  equity  of  redemption  in 
advance    must  cover   a    partial    as 
well  as    complete  destruction.     In 
Batty  V.  Snook,  5  Mich.  231,  it  was 
held  that  where  an  agreement  was 
in  fact  a  mortgage,  an  executory 
agreement  to  give  up  the  equity  of 
redemption  on  default  was  void,  aad 
would  violate  the   doctrine   which 
had  annulled  the  common-law  for- 
feiture.    If  mortgagees    can  evade 
the  law  by  acquiring  a  forfeiture  of 
something  a  little  less  than  the  en- 
tire freehold,  but  nevertheless  cover- 
ing its  usufruct,  the  beneficial  effect 
of  the  modern   legislation  and  to  a 
considerable  extent  of  the  previous 
equitable   doctrine    will    be    wiped 
out." 


712  REMEDIES    FOR    ENFORCEMENT    OF    LIENS,   ETC.  [§   461. 

payment  of  money  or  the  performance  of  an  obligation  is  the 
all-governing  fact  which  determines  such  a  deed  in  a  court  of 
equity  to  be  a  mortgage.  "Once  a  mortgage  always  a  mort- 
gage "  applies.^ 

§  461.  The  nature  and  purpose  of  the  foreclosure. —  The 
purpose  of  the  mortgage  foreclosure  is  twofold :  To  realize  the 
amount  due,  by  a  sale  of  the  premises  mortgaged  if  neces- 
sary, and  to  foreclose  the  equity  of  redemption  of  the  mort- 
gagor or  his  grantees.  There  are  two  forms  of  foreclosure 
recognized  and  used  in  the  court  of  equity:  (1)  A  strict  fore- 
closure, which,  briefly  stated,  is  a  procedure  by  which  a  day  is 
fixed  by  the  decree  of  the  court  within  a  short  period  for  the 
payment  of  the  mortgage  debt,  and,  in  default  thereof,  "  that 
the  mortgagor  and  all  persons  claiming  under  him  be  barred 
and  foreclosed  of  all  rights  and  equity  of  redemption  in  the 
mortgaged  premises  and  his  and  their  title  thereto  extinguished 
and  vested  in  the  mortgagee  without  a  sale  thereof."  ^  (2)  A 
foreclosure  decreeing  that  the  equity  of  redemption  shall  be 
barred  and  foreclosed  by  a  sale  of  the  property  at  a  certain 
time  fixed  by  the  decree.  In  this  foreclosure  proceeding  title 
to  the  property  can  only  be  obtained  and  theequity  of  redemp- 
tion foreclosed  by  a  public  sale  made  by  the  proper  officer  of 
the  court,  usually  the  master  in  chancery,  or  an  officer  acting 
in  the  same  capacity  and  bearing  the  same  relation  to  the 
court.  This  is  the  procedure  generally  adopted  by  the  states 
of  the  Union.^    The  several  states,  however,  have  adopted  stat- 

1  Woodworth  v.  Robb,  19  Ohio,  212;  remedy  is  only  permitted  in  a  few 

Houser  v.  La  Mont,  55  Pa.  St.  311,  98  of  the  states.     In  Illinois  it  has  been 

Am.  Dec.  755;  Carr  v.  Carr,  52  N.  Y.  said  that  it  will  be  allowed  when  the 

251;  Roddy  v.  Brick,  42  N.  J.  Eq.  218,  interests  of  both  parties  require  it. 

6  Atl.    806;   Campbell  v.  Worthing-  Johnson  v.  Donnell,  15  111.  97.     And 

ton,  6  Vt.  448;  Abbott  v.  Gregory,  '69  it  will  not  be  allowed  where  there 

Mich.   68;    McMillan    v.    Bissell,   63  are  other  incumbrancers  or  creditors 

Mich.   66,    29   N.  W.    739;    Stahl   v.  or  purchasers  of  the  equity  of  re- 

Dehn,  72  Mich.  645,  40   N.  W.  922:  demption.     Farrell  v.  Parlier,  50  III. 

Fisk  V.  Stewart,  24  Minn.  97;  Lewis  274. 

V.  Small.  71  Me.  552;  Sheldon  v.  sjn  Carroll  v.  Ballance,  26  111.  9,the 
Bradley,  37  Conn.  324;  Dunton  v.  court  discusses  the  several  foreclos- 
McCook,  93  Iowa.  258,  61  N.  W.  977;  ures  and  cites  and  quotes  the  early 
McDonoush  v.  Squire,  111  Mass.  217;  English  doctrine.  Andrews  v.  Scot- 
Cook  V.  Bartholomew,  60  Conn.  24,  ten.  2  Bland  (Md.X  66(i;  Atkinson  v. 
22  Atl.  444,  13  L.  R.  A.  452.  Hall,  reported  in  note,  2  Blaud  (Md.), 

^2  Barb.  Ch.  Pr.,  Bk.  5,  186.     This  371. 


§  4G2.]  REMEDIES    FOR    ENFORCEMENT    OF    LIENS,  ETC.  T13 

utes  regulating  the  procedure  in  foreclosure  cases  and  the  prac- 
tice of  foreclosure  in  equity  to  such  an  extent  that  it  is  diffi- 
cult to  lay  down  any  general  rules  or  procedure  in  the  fore- 
closure of  mortgages.     Some  of  the  states,  however,  have  con- 
tinued the  use  of  the  equity  practice  with  but  slight  variance. 
§  4G2.  When  the  right  to  foreclose  accrues.— The  time 
when  proceedings  to  foreclose  may  be  commenced  is  governed 
entirely  by  the  covenants  and  stipulations  in  the  mortgage. 
Generally  it  may  be  said  that  the  mortgage  cannot  be  fore- 
closed until  the  debt  which  it  secures  is  due.^     But  to  speak 
more  correctly  and  within  the  rule,  it  should  be  said  that  the 
right  accrues  whenever  there  is  default  in  some  of  the  condi- 
tions of  the  mortgage,  as,  for  exam  pie,  in  failing  to  pay  the  debt 
or  some  portion  of  it  when  due,  or  to  perform  some  obligation 
the  failure  to  do  which  is  made  a  cause  for  declaring  the  mort- 
gage due  and  subject  to  foreclosure.     As  where  it  is  stipulated 
that  upon  the  failure  to  pay  the  accrued  interest  when  it  be- 
comes due,  the  entire  debt,  both  principal  and  interest,  secured 
by  the  mortgage  maybe  declared  due;  or  on  the  non-payment 
of  taxes  by  the  mortgagor  due  on  the  premises,  the  mortgage 
debt  shall  become  due  and  payable. 

Where  a  mortgage  was  given  to  secure  the  mortgagees  as  in- 
dorsers  or  acceptors  of  the  paper  of  the  mortgagor,  containing 
the  stipulation  that  if  the  mortgagor  shall  promptly  pay  and 
discharge  all  notes  or  other  papers  of  his,  upon  which  the  mort- 
gagees, parties  of  the  second  part,  shall  or  may  be  or  become 
indorsers  or  acceptors,  together  with  all  interests,  costs  and 
charges  accruing  thereon,  so  as  to  save  the  said  mortgagees 
harmless  by  reason  of  their  connection  with  such  paper,  it 
being  declared  that  the  intention  was  that  the  instrument 
should  inure  and  operate  as  a  security  and  indemnity  in  the 
hands  of  the  mortgagees  against  any  liability  they  might  as- 
sume upon  the  paper  of  the  mortgagor,  it  was  held  that  this 
was  a  "  clear  and  unequivocal  condition  to  pay,  and  the  condi- 
tion was  broken  at  once  upon  a  failure  to  meet  the  paper  at 
maturity,  and  upon  this  breach  a  right  of  foreclosure  arose 
without  further  action  on  the  part  of  the  mortgagees."*     It 

1  Calhoun  v,  Calhoun,  63  N.  Y.  S.  For  failure  to  pay  accrued  interest. 
QQl  Evans  v.  Baker,  5  Kan.  App.  68,  47 

2  Butler  V.  Ladue,  13  Mich.  173,  ISO.    Pac.  314;  Nickels  v.  Peoples'  Build- 


71-4  KEMEDIES    FOR    ENFOKCEMENT    OF    LIENS,   KTC.  [^  4'i2. 

has  been  said:  "The  event  upon  the  happening  of  which  a 
mortgage  may  become  subject  to  foreclosure,  whether  the  fore- 
closure is  to  be  obtained  by  the  decree  of  a  court  of  equity  or 
b}'^  the  exercise  of  a  power  of  sale  vested  in  the  mortgai^-^ee,  is 
the  matter  of  contract  between  the  parties.  It  is  not  of  neces- 
sity the  maturity  of  the  debt  the  mortgage  may  be  intended 
to  secure,  and  default  in  its  payment,  though  that  is  the  event 
usually  prescribed  in  such  mortgages.  The  parties  are  capable 
of  contracting,  and  may  fix  such  an  event  as  they  may  prefer. 
Whatever  may  be  the  event,  until  its  occurrence  there  cannot 
be  a  valid  foreclosure  by  the  decree  of  a  court  of  equitv  or  by 
the  exercise  of  a  power  of  sale.  When  a  mortgage  debt  is  pay- 
able by  instalments,  and  the  condition  of  the  mortgage  is  gen- 
eral, that,  if  there  is  a  default  in  the  payment  of  the  instal- 
ments as  they  become  due  and  payable,  the  failure  to  pay  any 
instalment  is  a  breach  of  the  condition  and  a  forfeiture  vro 
tanto  of  the  mortgage,  entitling  the  mortgagee  to  foreclose. 
And  a  mortgage  for  the  security  of  several  debts  falling  due 
at  different  times,  with  a  general  condition  that  it  is  to  be  void 
if  the  debts  are  paid  as  they  fall  due,  is  construed  as  providing 
for  several  defaults,  and  the  failure  to  pay  any  of  the  debts  at 
the  time  it  becomes  payable  is  a  breach  of  the  condition,  operat- 
ing a  forfeiture  pro  tanto  and  authorizing  a  foreclosure."  ^ 

ers,  etc.  Ass'n,  93  Va.  380,  4  Am.  &  of  a  trust  deed  given  to  secure  the 
Eng.  Corp.  Cas.  (N.  S.)  562,  25  S.  E.  8;  bonds  of  the  corporation  executing 
Caldwell  v.  Ellebrecht,  68  111.  App.  it,  the  trustees  declare  the  principal 
596.  For  failure  to  paj' taxes.  John-  and  interest  due  immediately,  it 
son  V.  Irwin,  16  Wash.  652,  48  Pac.  was  held  not  necessary  to  make  a 
345.  Filing  bill  held  sufficient  dec-  demand  for  payment  of  interest  due 
laration  of  an  option  to  declare  on  bonds  before  commencing  fore- 
mortgage  debt  due.  Sweeney  v.  closure.  Dickerman  v.  Northern 
Kaufmann,  168  111.  233,  48  N.  E.  144;  Trust  Co.,  25  C.  C.  A.  549,  80  Fed.  450. 
Heffron  v.  Gage,  149  111.  182;  Dunton  i  Keith  v.  McLaughlin,  105  Ala,  339, 
V.  Sharp,  70  Miss.  850  But  where  342;  Fulgham  v.  Morris,  75  Ala.  245; 
mortgagee  failed  to  pay  the  full  Ottawa,  etc.  Co.  v.  Murray,  15  111.  336; 
amount  for  which  the  mortgage  P>5orgenstern  v.Klees,30I11.422;  Clay- 
was  given,  it  was  held  that  he  could  ton  v.  Whitaker,  68  Iowa,  418,  27  N. 
not  declare  the  whole  amount  of  W.  296.  And  where  there  was  a  stipu- 
the  mortgage  debt  due  for  default  lation  in  the  note  that  the  holder  at 
or  failure  in  paying  interest,  when  his  option  might  declare  both  princi- 
the  amount  retained  exceeded  the  pal  and  interest  due  on  default  in 
amount  of  interest  due.  Savings  payment  of  interest  and  in  the  mort- 
Bank  v.  Asbury.  117  Cal.  96,  48  Pac,  gage  securing  the  note,  making  the 
1081.     And  where  by  the  conditions  note  due  and   payable  thirty  days 


§  46;>.]  REMEDIES    FOR   ENFORCEMENT    OF    LIENS,  ETC.  T15 

§  40:}.  Somelimitations  and  exceptions.— If  the  mortgagor 

3s  prevented  by  fraud,  accident  or  mistake,  chargeable  to  the 
complainant,  or  of  which  he  had  knowledge,  from  complying 
with  the  terms  of  the  stipulations  as  to  payment,  a  court  of 
equity  would  excuse  him  for  the  failure  to  fulfill  the  conditions 
of  the  mortgage  and  a  foreclosure  would  not  be  allowed.^  And 
where  it  was  stipulated  that  on  default  of  payment  of  interest 
the  whole  debt,  at  the  option  of  the  mortgagee,  became  due  and 
payable,  it  was  held  that  the  mortgagor  would  be  relieved  from 
the  effect  of  this  stipulation,  where  it  clearly  appeared  that  he 
was  mistaken  as  to  the  facts  and  supposed  that  the  interest  had 
been  paid,  that  the  mortgagee  had  been  accustomed  to  receive 
it  from  one  to  six  months  after  it  became  due,  and  that  his 
object  and  purpose  in  declaring  the  whole  debt  due  was  not 
to' secure  prompt  payment  of  his  interest,  but  to  compel  the 
mortgagor  to  convey  the  premises  to  him.  And  it  has  been 
said  that  advantage  can  only  be  taken  of  a  clause  declaring 


after  such  default,  and  stipulating 
that  there  might  be  an   immediate 
foreclosure,  it  was  held  that  this  stipu- 
lation was  not  a  provision  for  a  forfeit- 
ure or  penalty,  but  merely  an  agree- 
ment for  bringing  the  note  to  matu- 
rity before  the  time  provided  therein, 
and  that  it  might  be  enforced  accord- 
ing to  the  intention  of  the  parties. 
Swearingen  v.  Lahner,  93  Iowa,  147, 
61  N.  W,  4:n,  26  L.  R.  A.  765,  57  Am. 
St.  Rep.  261.     And  where  a  mortgage 
given  to  secure  bonds  contained  a 
provision  that  in  case  of  default  for 
six  months   in  the  payment  of  the 
interest  on  either  of  them,  the  entire 
amount  of   the  debt  secured   shall 
forthwith  become  due  and  payable, 
and  that  the  lien  of  the  mortgage 
might  be  at  once  enforced;  and  the 
bonds  secured  by  the  mortgage  de- 
clared that  "in  case  of  the  non  pay- 
ment of  any  half-yearly  instalment  of 
interest  which  shall  have  become  due 
and  been  demanded,  and  such  default 
shall  have  continued  six  months  alter 
demand,"  the  principal  of  the  bond 
shall  become  due  with  the  effect  pro- 


vided in  the  mortgage.     It  was  held 
that  the  mortgage  being  a  mere  se- 
curity, the  terms  of  the  bonds  con- 
trol in  determining  when  the  princi- 
pal  was  payable.      Railway   Co.    v. 
Sprague,    103    U.   S.   756:   Meyer   v. 
Weber,  133   Cal.  681,  65  Pac.   1110; 
Olmstead  v.  Taylor,  126  Mich.  316,  85 
N.  W.  740;  Mason  v.  Luce,  116  Cal. 
232,  48  Pac.  72.    In  Ellis  v.  Fairbanks, 
38  Fla.  257, 21  So.  107,  it  was  held  that 
the  note  being  barred  by  the  statute 
of  limitations  in  a  law  court  does  not 
affect  the  lien  of  the  mortgage    But 
in  Idaho  it  was  held  that  but  one 
action  could  lie  for  the  recovery  of 
any  debt  secured  by  a  lien  upon  real 
or  personal  property.     And  where  it 
was  barred  by  the  statute  of  limita- 
tions as  to  the  debt,  the  lien   was 
carried  with  it.  Law  v.  Spence  (Idaho, 
1897),  48  Pac.  282. 

iBell  V.  Romaine,  30  N.  J.  Eq.  24; 
Faxton  v.  Faxon,  28  Mich.  159,  where 
it  was  held  that  complainant  was 
estopped  from  proceeding  hecau-e of 
certain  representations  made. 


716  REMEDIES    FOU    ENFORCEMENT    OF    LIENS,  ETO.  [§   403. 

both  principal  and  interest  due  upon  default  in  the  payment 
of  interest  in  a  case  where  there  can  or  ought  to  be  no  reason- 
able dispute  between  the  parties  as  to  the  amount  due  and  un- 
paid; that  "where  the  mortgagor  in  good  faith  and  upon  rea- 
sonable grounds  denies  his  liability  to  pay  interest,  or,  if  he  is 
so  liable,  claims  it  to  have  been  paid,  he  cannot  thus  be  made 
liable,  even  althougii  it  should  turn  out  that  he  was  in  error. 
This  clause  is  in  the  nature  of  a  forfeiture  or  penalty.  Its  ob- 
ject is  to  punish  for  a  wilful  neglect  of  a  clear  duty,  and  to 
hold  it  applicable  to  and  apply  it  in  a  case  where  there  was 
an  honest  dispute,  would  be  harsh  and  unjust  and  contrary  to 
all  well-settled  equitable  principles."  ' 

Following  the  rule  which  usually  obtains  in  equity  cases, 
that  equity  will  not  take  jurisdiction  of  the  cause  where  there 
is  a  full,  adequate  and  complete  remedy  at  law,  the  equity 
courts  generally  will  refuse  to  entertain  a  bill  to  foreclose  a 
mortgage  if  it  appears  that  a  judgment  has  been  obtained  in 
a  suit  at  law  for  the  money  demanded  by  such  bill,  or  any 
part  thereof,  unless  an  execution  has  been  issued  against  the 
property  of  the  defendant  upon  such  judgment  and  returned 
unsatisfied  in  whole  or  in  part,  and  that  the  defendant  has  no 
property  to  satisfy  the  execution  except  the  mortgaged  prem- 
ises. This  is  the  rule  applicable  in  those  states  where  the  equity 
practice  obtains,  but  is  more  or  less  governed  by  statutes  in  the 
several  states.^  In  the  United  States  court,  however,  it  has 
been  held  that  it  is  not  necessary  for  the  holder  of  a  mortgage 
to  exhaust  his  remedy  at  law  before  he  can  go  into  equity  and 
foreclose  his  mortgage;  he  may  proceed  both  in  the  law  court 
and  in  the  equity  court  at  the  same  time  and  until  actual  sat- 
isfaction of  the  debt  has  been  obtained.^    And  it  has  been  held 

1  Wilcox  V.  Allen,  36  Mich.  160,  169.  his  mortgage.    Hensikerv.  Lamborn, 

2  Dennis  V.  Hemingway,  Walk.  Ch.  13  Ind.  468;  Duck  v.  Wilson,  19  Ind. 
(Mich.)  387;  Hargreaves  v.  Menken,  190;  Conyers  v.  Mericles,  75  Ind.  443. 
45  Neb.  668.  6',  N.  W.  951;  Shufelt  v.  Also  in  New  Hampshire.  Tappan  v. 
Shufelt,  9  Paige  (N.  Y.),  137,  87  Am.  Evans,  11  N.  H.  311. 

Dec.   381;  Guilford  v.    Crandall,   69  3  Over  v.  Gallagher,  93  U.  S.  199; 

Hun  (N.  Y.),  414,  ','3  N.  Y.  S.  465;  Ould  Brid.oport.  etc.  v.  Meader,  18  C.  C.  A. 

V.  Stoddard,  54  Cal.  613.     But  in  In-  451,  73  Fed.  115:  Fairman  v.  Farmer, 

diana  it  was  held  that  the  mortgagee,  4  Ind.    436;  Wilhelm  v.  Lee,    2  Md. 

having  recovered  a  judgment  for  his  Ch.  322;  Priddy  v.  Hartsook,  81  Va. 

debt,  may,  if  he  has  not  taken  out  67. 
an  execution,  proceed  to  foreclose 


§  464]  REMEDIES    FOR    ENFORCEMENT    OF    LIENS,  ETC.  TIT 

that  Where  there  is  no  time  fixed  for  the  payment  of  the  money 
secured  bv  the  mortgage,  either  at  a  future  day  or  on  demand, 
it  was  du;  as  soon  as  given,  and  an  interest-bearmg  security 
from  its  date.^  It  goes  without  saying  that  if  there  has  been 
an  extension  of  the  time  of  payment  based  upon  a  good  con- 
sideration or  under  circumstances  that  the  party  extending  the 
time  would  be  estopped  from  violating  his  promise,  the  court 
will  not  entertain  a  bill  to  foreclose  the  mortgage  until  the 
time  of  the  extension  has  expired,  but  if  there  is  no  valuable 
consideration  for  such  a  promise  it  will  not  be  operative. 

§  464.  The  forum.— There  has  been,  no  doubt,  diversifae-l 
rules  and  holdings  of  courts  as  to  whether  the  action  for  the 
foreclosure   of   a  mortgage   is   a  local   or   transitory  action 
While  the  question  of  venue  or  forum  has  been  generally  set- 
tled by  statute  in  the  different  states,  and  the  action  is  gener- 
ally reo-arded  as  local  and  only  properly  brought  in  the  county 
where  "the  premises  mortgaged  are  situated,Mt  would  seem 
that  at  an  earlv  period  it  was  regarded  as  transitory;  and  by 
statute  in  some  of  the  states  it  is  now  governed  by  the  same 
rules  that  govern  transitory  personal  actions.*     But  this  is  the 
exception  and  only  prevails  in  a  few  jurisdictions,  while  in  a 
creat  majority  of  jurisdictions,  state  and  federal,  the  action 
must  be  brought  in  the  county  or  district  where  the  land  is 
located.*     In  the  federal  courts  the  question  often  arises  in  the 

iSheehy  t.  MandeviUe,  7  Cranch        <Dary    v.   Kane.    158    Mass.    376; 
(U  S)  "08   217-  Eaton  v.  Truesdail,    Reeves  v.  Brown,  103  Ala.  537. 
40'Mich.  1.  6;  'ivens  v.  Cincinnati,        « Campbell  v.  West,  86  Cal   197; 
etc  Rv  Co..  103  Ind.  27;  Union,  etc     Goldtree  v.  McAllister,  86  Cal.  93 
Co  .    CurU;  35  Ohio  si  357.  Tucker  v.  Lake,  67  N.  H.  193  29  At . 

2  Fowler  v.  Brooks.  13  N.  H.  240;  406;  Bancroft  v.  Conant,  64  N.  H. 
Worrall  v.  Eastwood.  44  N.  J.  Eq.  151,  5  Atl.  836.  But  in  New  Hamp- 
277-  Union  etc.  Co.  v.  Bonnell.  35  shire  it  was  held  that  where  the  ac- 
Ohi'o  St  365;  Lea  v.  West  Jersey,  tion  is  brought  in  the  wrong  county 
etc  Co    29  N.  J.  Eq.  377.  it  may,  by  an  order  of  the  court,  be 

3  Iowa,  etc.  Co.  v.  Dore,  63  Iowa,  transferred  to  the  county  where  the 
459  19  N  W.  301;  Equitable  Life  Ins.  property  is  situated.  Bartlet  v.  Lee. 
Co'  V  Gleason,  56  Iowa,  47,  8  N.  W.  60  N.  H.  168.  In  Brockway  v.  Carter, 
790  where  it  was  held  tliat  the  pro-  25  Wia  510.  513.  this  question  was 
vision  of  the  code  that  the  action  discussed  and  it  was  there  stated 
may  be  brought  where  the  property  that  the  object  of  tlie  law  of  1862 
is  situated  is  merely  permissive  and  in  Wisconsin,  "doubtless  was  to 
does  not  irevent  bringing  the  action  change  the  practice"  which  was  es- 
where  the  notes  are  payabla  tablished    and   sanctioned    by    the 


718  REMEDIES    FOR    ENFORCEMENT    OF    LIEInS,  ETC.  [§  404, 

foreclosure  of  railroad  mortgages  which  include  property  in 
different  states.  The  court  has  generally  held  that  it  has  the 
power,  in  a  suit  commenced  in  a  jurisdiction  where  a  portion 
of  the  premises  are  situated,  to  make  a  decree  as  to  the  entire 
property.  And  where  a  suit  was  brought  against  a  corpora- 
tion, a  railroad  company,  in  a  court  of  the  United  States 
within  the  jurisdiction  of  which  a  portion  of  the  railroad  was 
situated,  to  foreclose  a  mortgage  upon  the  railroad  property, 
a  portion  of  the  railroad  being  situated  in  another  state,  and 
the  mortgage  which  the  bill  sought  to  have  foreclosed  covered 
that  part  as  well  as  the  part  in  the  jurisdiction  and  state  where 
the  court  was  situated,  and  the  court  decreed  a  sale  of  the 
entire  property  covered  by  the  mortgage,  and  ordered  a  sale 
in  the  usual  manner  of  the  property  and  good  and  sufficient 
deeds  to  the  purchaser  executed,  and  declared  b}''  the  decree 
that  after  the  sale  both  the  defendant  corporations  and  the 
complainant's  trustees  named  in  the  mortgage,  as  well  as  all 
other  persons  claiming  under  them  oreither  of  them,  be  barred 
and  foreclosed  from  all  interest,  estate,  right,  claim  or  equity 
of  redemption  of,  in  and  to  the  property;  reserving,  however, 
the  rights  of  the  holders  of  the  bonds  and  coupons  secured  by 
the  first  mortgage  then  remaining  outstanding  and  unpaid, 
and  directing  that  the  defendant  corporations  surrender  to  the 
purchaser  the  property  sold  and  conve3'ed  upon  the  execution, 
a])proval  and  delivery  of  the  master's  deed,  conveying  all  the 
property  therein  described  to  the  purchaser,  to  an  objection 

court  in  Pereles  v.  Albert,  12  Wis.  lar,  and  has  provided  that  the  action 

666.     The  court  say:  "In  that  case  must  be  commenced  and  determined 

it  was   held  that  the   circuit  court  in  the  county  where  the  mortgaged 

had  jurisdiction  of  actions  of  fore-  premises  are  situated,  unless  the  ac- 

closure  even  when  the   mortgaged  tion  is  removed  to  another  county." 

premises  were  situated  in  some  other  Spikes  v.  Brown  (Tex.  Civ.  App,),  49 

county  than  that  where  the  suit  was  S.  W.  725. 

commenced;   in  other   words,   that        In  Branch  v.  Wilkins  (Tex.  App.), 

the  circuit  court  of  each  county  had  63  S.  Y\\  1088.  held  that  the  court  of 

a     kind    of    incipient    jurisdiction  the  county  where  a  note  is  payable 

throughout  the  state  of  foreclosure  may  in  an  action,  having  jurisdiction 

actions,  and,  with  the  assent  of  par-  of  the   necessary   parties,   take  ju- 

ties,  might  hear  and  determine  the  risdiction  to  foreclose  the  mortgage 

same,   even   where    the    mortgaged  securing  the  note,  and  that  the  suit 

property    was    in    another    county,  need  not  be  brought  in  the  county 

The  legislature,  however,  has  seen  where  the  land  is  situated. 
fit  to  change  the  law  in  this  particu- 


§  464.  j  KEMEDIES    FOB    ENFORCEMENT    OF    LIENS,  ETC.  T19 

urged  ao-ainst  the  decree  of  the  court  it  was  said:  "If  such 
a  foreclosure  and  sale  cannot  be   made  of  a  railroad  which 
crosses  a  state  line  and  is  within  two  states,  when  the  entire 
line  IS  subject  to  one  mortgage,  it  is  certainly  to  be  regretted ; 
and  to  hold  that  it  cannot  be  would  be  disastrous,  not  only  to 
the  companies  that  own  the  road,  but  to  the  holders  of  bonds 
secured  by  the  mortgage.     Multitudes  of  bridges  span   navi- 
gable streams  in  the  United  States,  streams  that  are  bounda- 
ries of  two  states.     These  bridges  are  often  mortgaged.     Can 
it  be  that  they  cannot  be  sold  as  entireties  by  the  decree  of  a 
court  which  has  jurisdiction  of  the  mortgagors?     A  vast  num- 
ber of  railroads,  partly  in  one  state  and  partly  in  an  adjoining 
state,  forming  continuous  lines,  have  been  constructed  by  con- 
solidated companies  and   mortgaged  as  entireties.     It  would 
be  safe  to  say  that  more  than  one  hundred  millions  of  dollars 
have  been  invested  on  the  faith  of  such  mortgages.     In  many 
cases  these  investments  are  sufficiently  insecure  at  the  best. 
But  if  the  railroad,  under  legal  process,  can   be  sold  only  in 
fragments;  if,  as  in  this  case,  where  the  mortgage  is  upon  the 
whole  line,  and  includes  the  franchises  of  the   corporation 
which  made  the  mortgage,  the  decree  of  foreclosure  and  sale 
can  reach  only  the  part  of  the  road  which  is  within  the  state, 
it  is  plain  that  the  property  must  be  comparatively  worthless 
at  the  sale.     A  part  of  a  railroad  may  be  of  little  value  when 
its  ownership  is  severed  from  the  ownership  of  another  part. 
And  the  franchise  of  the  company  is  not  capable  of  division. 
In  view  of  this,  before  we  can  set  aside  the  decree  which  was 
made,  it  ought  to  be  made  clearly  to  appear  beyond  the  power 
of  the  court.     Without  reference  to  the  English  chancery  de- 
cisions, where  this  objection  to  the  decree  would  be  quite  un- 
tenable, we  think  the  power  of  courts  of  chancery  in   this 
country  is  sufficient  to  authorize  such  a  decree  as  was  here 
made.     It  is  here  undoubtedly  a  recognized  doctrine  that  a 
court  of  equity,  sitting  in  a  state  and  having  jurisdiction  of 
the  person,  may  decree  a  conveyance  by  him  of  land  in  another 
state,  and  may  enforce  the  decree  by  process  against  the  de- 
fendant.    True,  it  cannot  send  its  process  into  that  other  state, 
nor  can  it  deliver  possession  of  land  in  another  jurisdiction; 
but  it  can  command  and  enforce  a  transfer  of  the  title.     And 
there  seems  to  be  no  reason  why  it  cannot,  in  a  proper  case, 


720  REMEDIES   FOR    ENFORCEMENT    OF    LIENS,  ETC.  [§  465. 

effect  the  transfer  by  the  agency  of  the  trustees  when  they  are 
complainants.  .  .  .  The  mortgagors  here  were  within  the 
jurisdiction  of  the  court.  So  were  the  trustees  of  the  mortgnge. 
It  was  at  the  instance  of  the  latter  the  master  was  ordered  to 
make  the  sale.  The  court  might  have  ordered  the  trustf^es  to 
make  it.  The  mortgagors  who  were  foreclosed  were  enjoined 
against  claiming  property  after  the  master's  sale,  and  directed 
to  make  a  deed  to  the  purchaser  in  further  assurance.  And 
the  court  can  direct  the  trustees  to  make  a  deed  to  the  pur- 
chaser in  confirmation  of  the  sale.  We  cannot,  therefore,  de- 
clare void  the  decree  which  was  made.'" 

In  the  state  courts,  where  the  described  property  is  situated 
in  different  counties  but  is  one  parcel,  it  is  generally  held 
that  either  county  containing  a  portion  of  the  premises  may 
assume  jurisdiction  of  a  foreclosure  of  the  mortgage. 

§465.  Parties  to  the  action  —  Complainants. —  The  usual 
rules  governing  as  to  parties  in  equity  prevail  in  actions  for 
the  foreclosure  of  mortgages.  All  persons  who  will  be  affected 
by  the  decree  prayed  for  are  proper  parties.  The  owner  of 
the  mortgage,  whether  as  mortgagee  or  assignee,  and  the  notes 
secured  by  it,  should  be  made  parties  plaintiff.'-     If  the  owner 

iMuller  V.  Dows.  94  U.  S.  444,  449;  355;  Surine  v,  Wiuterbotliam,  96  111. 

McElreth  v.  Pittsburg  R.  Co.,  55  Pa,  App.     123;     Wallace     v.     Dunning, 

St.    189.     In   Richard   v.    Boyd,   1.34  Walk.  Ch.  (Mich.)  416:  S|)ear  v.  Had- 

Mich.    396,   83   N.  W.    106,   held   the  den,  31  Mich.  26.").     Any  i-erson  who 

action   to  foreclose  a  mortgage    is  at  thetime  of  the  commeni-ement  of 

local.     In  Roche  v.  Marvin,  92  N.  Y.  the  action  is  entitled  to  the  benefits 

398,  held  that  actions  brought  to  en-  of  a  foreclosure,  whether  as  owner 

force   liens  against   real   estate  are  of  the  debt  secured  by  tiie  mortgage 

local.    The  same  rule  is  announced  or  as  party  to  a  contract  it  secures, 

in  Chapin  V.  Circuit  Judge.  104  Mich,  should  be  made  party  complainant. 

232,  62  N.  W.  351;    Staacke  v.   Bell,  Where  one  purchases  the  property 

125  Cal.  309.  57  Pac.  1012.  under  an  irregular  statutory  foreclos* 

2 Town  V.  Alexander,  185  111.  254,  ure,  he  is  the  proper  party  to  a  bill 

56  N.  E.  1111;    Corteiyou   v.  Jones,  to  foreclose  the  mortgage  and  not 

132  Cal.  isl.  61  Pac.  918.     The  com-  the  mortgagee.     Gilbert   v.    Cooley, 

plainant  mu~t  be  the  owner  of  the  Walk.    Ch.    (Mich.)  494;    Moorse    v. 

note  and  security.    The  transfer  of  a  Byam,  55  Mich.  594.     And  one  who 

note  secured  by  a  mortgage  carries  hnlds  the   mortgage  as  security  by 

with    it    the    mortgage.     Parker  v.  an  assignment  of  it  may  maintain  a 

Randolph.  5  S.  Dak.  549,  29  L.  R.  A.  bill  lo  foreclose.   McKinley  v.  Miller, 

33;  St.  Louis,  etc.  Co.  v.  Geppart.  95  19  Mich.  142,     And  even  if  there  i» 

111.  App.  187;    Pettibone  v.  Edwards,  no  written  assignment  he  may  fore- 

15  Wis.  95;  Goodall  v.  Mopley,  45  Ind.  close  m  equity  on  proof  of  his  pur- 


§  465.]        remp:pies  for  enfoeckment  of  liens,  etc.  721 

}s  deceased,  the  bill  to  foreclose  the  mortgage  should  be  Filed 
by  his  personal  representatives  and  not  by  his  heirs.     Where 
several  notes  secured  by  the  mortgage  are  owned  by  different 
persons,  each  owner  has  an  interest  in  the  mortgage  propor- 
tionate to  the  amount  of  his  note,  and  may  bring  an  action  to 
foreclose  the  mortgage  in  which  he  may  join  his  co-owners,  if 
they  consent  to  do  so,  as  plaintiffs;  or,  if  they  refuse,  may 
make  them  defendants,  alleging  the  reason  for  doing  so.     Gen- 
erally an  assignor  of  a  mortgage  is  not  a  necessary  or  proper 
party,  but  there  are  exceptions  to  this  rule.     As  where  he  still 
retains  an  interest  in  the  mortgage;  as,  for  example,  where 
only    the    debt    secured  is  assigned  merely  as   security;  or 
where  the  mortgage  is  assigned  but  not  the  security,  that  is, 
in  pledge  to  secure  another  debt  or  obligation.     In  such  case 
the  assignor  may  maintain  an  action  to  foreclose  and  the  as- 
signee  may  also  sustain   an  action.     When  the  mortgage  is 
given  to  a  trustee  to  secure  several  owners  of  bonds  issued 
nnon  it,  generally  the  trustee  is  the  proper  party  plaintiff,  but 
the  individual  bondholders  are  not  excluded   from  bringing 
the  action.     And  when  the  trustee  refuses  to  act,  or  is  absent 
from  the  state  or  cannot  act,  the  bondholders  may  commence 
the  action  as  plaintiffs.     Nor  is  it  necessary  that  they  should 
join  all  the  shareholders  in  the  action  if  they  are  numerous. 
The  rule  that  one  for  all  or  a  few  for  many  may  file  the  bill 
obtains.     In  such  case  a  bondholder  commencing  the  action 
should  act  for  all  and  bring  the  suit  for  the  benefit  of  all  the 
bondholders,  and  not  only  permit  them  to  intervene  if  they 
desire  to  do  so,  but  see  to  it  that  their  rights  are  protected  in 
the  final  decree.' 

The  rule  in  the  United  States  courts  is  thus  expressed: 
"That  all  persons  who  have  any  material  interest  in  the  sub- 
ject of  the  litigation  should  be  joined  as  parties,  either  as  com- 
plainants or  defendants."  2  But  where  the  suit  is  brought 
in  the  name  of  the   bondholders  instead  of  the  trustee,  the 

chase.      Cooper    v.   Ultnann.  Walk.  35  Mich.  474;  Bendey  v.  Townsend, 

Ch.  (Mich.)231;  Dougherty  v.  Randall,  109  U.  S.  665. 

3  Mich.  581;  Martin  v.  McReynolds,  i  New  Orleans,  etc.  R. Co.  v.  Parker, 

6  Mich.  70;  Pease  v.  Warren.  29  Mich.  14:5  U.  S.  42,  48. 

9.    But  see  Lash  brooks  V.  Hatheway,  2  Railway  Co.  v.  Orr,  18  Wall.  (U. 

52  Mich.  124;  Briggs  v.  Hannowald,  S.)  471,  474;  Mechanics'  Bauk  v.  Se- 
46 


722  EEMEDIES   FOE   ENFORCEMENT    OF   LIENS,  ETC.  [§  466. 

trustee  being  ignored,  it  must  be  shown  in  the  bill  by  proper 
allegations  that  there  is  good  reason  for  thus  bringing  the  ac- 
tion; that  they  have  requested  the  trustee  to  take  advantage 
of  a  default  of  the  mortgagor  and  he  has  refused  or  neglected 
to  do  so,  or  some  other  sufficient  reason.'  And  so  where  a 
trustee  refused  to  foreclose  after  default,  it  was  held  that  any 
bondholder  might  file  a  bill  for  foreclosure;  that  to  such  a  bill 
a  trustee  holding  the  legal  title  is  a  necessary  party,  and  may 
be  made  defendant  when  he  refuses  to  file  the  bill  himself.^ 
If  the  mortgage  is  owned  by  a  copartnership  the  bill  should  be 
filed  by  the  individual  members  of  the  firm;  but  should  any 
of  the  partners  refuse  to  join  as  plaintiffs,  the  partner  com- 
mencing the  action  may  make  such  copartners  defendants.  It 
is  said  to  be  a  well-settled  rule  that  in  the  foreclosure  of  a 
mortgage  held  by  a  trustee,  not  only  the  trustee,  but  also  the 
cestui  que  trusty  should  be  made  a  party  to  the  bill.  The  holder 
of  both  the  legal  and  the  equitable  interest  in  the  mortgage 
are  necessary  parties.'  All  the  parties  entitled  to  the  amount 
secured  by  the  mortgage,  and  those  who  legally  represent  it, 
should  be  before  the  court;  otherwise  there  could  be  no  re- 
demption and  no  foreclosure.^ 

§ +()6.  Defendants. —  The  general  rule  as  to  defendants  is 
that  all  persons  having  an  interest  in  the  equity  of  redemp- 
tion should  be  made  defendants  to  a  bill  of  foreclosure.^  If 
the  title  to  the  equity  of  redemption  is  in  different  persons,  as 
devisees,  or  those  having  claims  as  legatees,  all  such  persons 
should  be  joined  as  defendants.  And  it  has  been  held  that 
"all  incumbrancers  existing  at  the  commencement  of  the  suit 
are  entitled  to  be  parties,  for  they  have  an  interest  to  be  af- 
fected, and  ought  to  have  an  opportunity  of  paying  off  the 
prior  incumbrances."**     If  the  mortgagor  has  not  assigned  the 

ton.  1  ret.  (U.  S.)  299;  McFadden  v.  165;  Large   v.  Van  Doren,   14  N,  J. 

Mays.  49  N.  J.  Eq.  176.  Eq.   208;  Jolines  v.  Cutwater  (N.  J. 

1  E  ectric   Co.  v.  Le  Grande,   etc.  Eq.,  1897),  36  AM.  483. 

Co.,  79  Fed.  25.  <  Story,  Eq.  PI.,  sec.  201. 

2 First  Nat  Bank  v.  Radford,  etc.  »  Story.  Eq.  PI,  sees.  182.  198;  Coles 

Co.,  26  C.  C.  A.  1,  80  Fed.  569;  Con-  v.  Forrest,  10  Beav.552;  Montgomery 

soli.lated.  etc.  Co.  v.  City  of  Santi-  v.  Brown,  2  Gilin.  (111.)  581. 

ago,  92  Fed.  759;  Dorn   v.  Colt,  180  s Haines   v.    Beach,   3  Johns.    Ch. 

111.  397,   .54   N.   E.   167:  Illinois,   etc.  (N.    Y.)   4C0.   461.     In  this  case  the 

Bank  v.  Railway  Co..  117  Cal.  332.  court  further  observes:  "The  injus- 

3  Allen's  Ex'rs  v.  Roll,  25  N.  J.  Eq.  tice  that  would  be  produced  if  they 


§  466.]  REMEDIES    FOR   ENFORCEMENT   OF    LIENS,  ETC.  723 

equity  of  redemption  he  is  an  indispensable  party;  and  if  he 
has  died  without  transferring  or  disposing  of  the  equity  of  re- 
demption his  heirs  become  necessary  parties,  and  no  decree 
could  be  properly  entered  until  they  are  before  the  court.  The 
two  principal  objects  to  be  attained  in  a  foreclosure  suit,  (1)  to 
realize  the  amount  due,  or  (2)  to  obtain  a  decree  for  a  sale  and 
foreclosure  of  the  equity  of  redemption,  go  far  in  determin- 
ing who  are  proper  parties  defendant;  those  who  assumed  the 
personal  obligation  by  executing  the  bond  or  note  secured  by 
the  morto-age,  or  who  executed  the  mortgage  which  contained 
a  covena°nt  to  pay  and  discharge  the  debt,  are  persons  inter- 
ested in  the  foreclosure  and  are  proper  if  not  indispensable  par- 
ties, for  the  amount  found  due  and  unpaid  upon  the  foreclos- 
ure of  the  mortgage  is  of  interest  to  them,  as  it  determines  the 
amount  of  any  deficiency  for  which  judgment  may  be  ren- 
dered after  a  sale  of  the  mortgaged  premises.^     This  same  in- 
terest attaches  to  all  subsequent  purchasers  of  the  premises 

redemption.     In  other  words,  so  far 
as  concerns  tliis  first  mortgage,  the 
complainant     might,     if     be     had 
thought    proper,     have    made    the 
mortgagor  a  party,  for  the  purpose 
of  having  a  decree  over  against  him 
for  a  deficiency.     But  the  assignee 
of  the  equity   of  redemption,  who 
had   no  interest   whatever  in  that 
question,   and    who    could    not    be 
in    any    way  benefited    by  having 
him  made  a  party  for  that  purpose, 
has  no  right  to  object  that  tlie  origi- 
nal mortgagor  is  not  a  party  to  the 
suit.     So  far  as  the  rights  of  an  as- 
signee of  the  equity  of  redemption 
are  concerned,  the  mortgaged  prem- 
ises are  the  primary   fund   for  the 
payment    of  the    debt,   unless   the 
mortgagor  has  conveyed  to  him  with 
warranty;  and  the  assignee  may  set 
up  any  defense  which  will  be  a  bar 
to  the  complainant's  claim  against 
the   land."     Ingham  v.  Weed  (Cal., 
1897),  48  Pac.  318;  Hibernian  Ass'n 
V.  Law,  88  III.  App.  18;  Security,  etc 
.  Co.  V.  Matter n,  131  Cal.  326,  63  Pac. 
48-J. 


were  to  lose  their  rights  because 
they  are  not  made  parties  is  very 
apparent.  The  rule,  therefore,  has 
been  well  settlea  and  uniformly  sup- 
ported that  the  subsequent  incum- 
brancers must  be  parties;  and  if 
omitted,  the  decree  will  not  bind 
their  rights." 

1  In  Bigelow  v.  Bush,  6  Paige  Ch. 
(N.  Y.)  343,  345.  where  the  mortgagor 
had  parted  with  all  his  right  and  in- 
terest in   the  mortgaged   premises, 
but  was  personally  liable  to  the  com- 
plainant for  the  payment  of  the  debt 
secured  by  the  mortgage,  it  was  said: 
"If  he  had  been  withm  the  jurisdic- 
tion of  the  court,  tiie  complainant 
might    unquestionably   have    made 
him  a  party  for  the  purpose  of  hav- 
ing  a  decree  over  ajiainst   him   for 
the  residue,  under  the  provisions  of 
the  revised  statutes,  in  case  the  pro- 
ceeds  of    the    mortgaged    premises 
should  be  insufficient  to  satisfy  the 
debt  and  costs.     He  was,  therefore, 
a  proper  party,  although  not  a  nec- 
essary party,  to  a  bill  of  foreclosure 
agamst  the  grantee  of  the  equity  of 


721  REMEDIES    FOR    ENFORCEMENT    OF    LIENS,  ETC.  [§  406. 

who  have  assumed  the  indebtedness,  for  the  deficiency  judg- 
ment would  be  a  claim  against  them  as  well.  And  so  all  sure- 
ties or  guarantors  of  the  pajnnent  of  the  note  or  bond  secured 
are  alike  interested  and  may  be  proper  defendants  to  the  ac- 
tion.* But  it  has  been  said  that  if  the  mortgagor  has  disposed 
of  his  equity  of  redemption  and  has  no  interest  in  the  mort- 
gaged premises,  he  is  not  a  necessary  party  to  a  bill  to  fore- 
close,^  and  that  a  demurrer  to  the  bill,  because  such  a  mort- 
gagor is  not  made  a  party,  will  be  overruled.^  Where,  in  a 
bill  to  foreclose,  the  complainant  was  the  holder  of  some  of 
the  bonds  secured  by  a  trust  deed,  and  the  purchaser  of  the 
equity  of  redemption  and  his  wife  were  the  only  defendants, 
the  mortgagor  being  a  corporation,  and  by  reason  of  the  con- 
veyance of  the  equity  of  redemption  ceased  to  have  any  inter- 
est in  the  mortgaged  property,  and  had  also  become  insolvent 
and  without  assets,  it  was  held  that  an  omission  to  make  the 
mortgagor  a  defendant  could  not  be  successfully  criticised  upon 
demurrer.*  Because  of  his  interest  in  the  equity  of  redemp- 
tion, and  generally  in  the  amount  due  upon  the  mortgage,  the 
owner  of  the  property  at  the  time  of  the  foreclosure  is  a  nec- 
essary party  defendant.  But  persons  who  claim  an  adverse 
title  to  the  mortgagor  are  not  properly  made  parties  to  the 
action,  for  their  rights  cannot  be  adjudicated;'  nor  need  prior 
incumbrancers  be  made  parties  to  the  bill  except  in  cases  where 
the  bill  prays  for  a  receiver  or  for  a  sale  of  the  entire  mort- 
gaged property  free  from  all  incumbrances,  for  in  such  case  it 
would  directly  attack  the  prior  lien.^ 

'Chester  v.  King,  3  N.  J.  Eq.  406;  2 story,  Eq.  PL,  sees.  197,  198;  Hai 

Crawford  v.  Edwards.  83  Mich.  3.j4;  rison's  Adm'x  v.  Johnson,  18  N.  J. 

Curtis  V.  Tyler.  9  Paige  Ch.  (N.  Y.)  Eq.  425. 

433;  Burr  v.  Beers,  24  N.  Y.  178;  Mil-  svreeland  v.  Loubat,  2  N.  J.  Eq. 

ler  V.  Thompson,  34  Mich.  10;  Carley  104 

V.  Fox,  38  Mich.  387;  Taylor  v.  Whit-  *  Johnes   v.  Cutwater  (N.   J.   Eq., 

more,  35  Mich.  98;  Winans  v.  Wilkie,  1897),  36  Atl.  483. 

41  Mich.  264;   Jehle   v.    Broolis,  112  sjoslin  v.  Williams,  61  Neb.  8i9,  86 

Mich.  131;  King  v.  Whitely.  10  Paige  N.  W.  473;  Branch  v.  Wilkens  (Tex. 

Ch.  (N.  Y.)  465;  Field  v.  Thistle.   60  App.,  1901),  63  S.  W.  1083. 

N.  J.  444,  46  Atl.  1099;  Title,  etc.  Co.  «  Jerome  v.  McCarter,  94  U.  S.  734, 

V.  Weiher,  63  N.  Y.  S.  224;  Corning  735:   Colonial,  etc.  Co.   v.  Hutchin- 

V.  Burton,  103  Mich.  86;  Lambertville  son,  etc.  Co..  44  Fed.  219;  McClure  v. 

Nat.   Bank    v.    McCready,    etc.    Ca  Adams,  76  Fed.  899. 
(N.  J.  Ch.,  1888),  1  L.  R.  A.  334 


§  467.]  KEMEDIES    FOB   ENFORCEMENT   OF    LIENS,  ETC.  T25 

§  467    The  bill  of  complaint.—  The  plaintiff  in  foreclosure 
must  by  his  bill  of  complaint  set  forth  such  a  cause  of  action  as 
will  entitle  him  to  a  decree  determining  the  amount  due  and 
unpaid  upon  the  mortgage,  and  ordering  a  sale  of  the  premises 
and  by  it  a  foreclosure  of  the  equity  of  redemption.     The  req- 
uisite allegations  are  largely  dependent  upon  the  statutes  reg- 
ulatino-  foreclosures  in  the  jurisdiction  where  the  suit  is  com- 
mence°d,  but  there  are  certain  requisites  which  every  jurisdic- 
tion would  hold  must  be  shown  by  the  complaint  to  exist. 
The  morto-ao-e  is  executed  to  secure  the  payment  of  an  indebted- 
ness or  the°pe^formance  of  an  obligation  that  is  usually  evi- 
denced by  a  note,  bond  or  contract.     The  contract  or  the  evi- 
dence of  debt  or  obligation  outside  of  the  reference  that  is 
made  to  it  in  the  mortgage  may  rest  in  parol  or  in  writing. 
The  bill  of  complaint  should  show  by  proper  allegations  the 
indebtedness  or  the  obligation  that  is  secured,  that  the  com- 
plainant is  the  owner  of  it  and  entitled  to  the  payment  of 
the  debt,  or  to  have  the  contract  or  obligation  secured  by  the 
morto-ao-e  performed ;»  that  the  debt  or  obligation  is  due  and 
payable!    If  it  is  evidenced  by  a  note  or  bond,  the  bill  of  com- 
plaint should  so  allege.     It  is  not  necessary  to  state  the  full 
particulars  and  circumstances  of  the  debt,  or  the  making  of  it, 
or  the  reasons  and  circumstances  which  induced  the  parties  to 
enter  into  the  contract  or  obligation.     It  is  sufficient  to  allege 
the  execution  and  delivery  of  the  note  or  bond,  the  amount  of 
it  and  that  it  is  due  and  unpaid;  if  it  is  a  written  contract, 
the  substance  of  the  contract;  that  the  mortgagor  is  in  default; 
that  the  mortgage  was  duly  made,  executed  and  delivered  to 
secure  the  payment  of  the  debt;  that  the  note,  bond  or  con- 
tract is  secured  by  the  mortgage,  and  that  the  complainant  is 
entitled  to  foreclosure."    And  in  those  jurisdictions  where  the 

iCooperv.Smith,75Mich.247;Wal.  indebtedness  was  due.     In  Sun,  etc. 

lace V  Dunning.  wklU.Ch.(Mich.)  416;  Ass'n  v.  Buck, 55  N.  Y.  S.  269.  tl.e  com- 

Miles  V.  Hoas.7  Pai«eCh.  18;  Spear  v.  plaint  was  held  to  be  sufficient  upon 

Hadden  Si  Mich.  265.  268;  Parker  v.  demurrer.     The  mortgage  sought  to 

Randolph  (S.  Dak.),  29  L.  R  A.  33.  be  foreclosed  stipulated  to  pay  the 

2Cornelious  v.   Halsey.   3  Stockt.  amount    of    the    indebtedness    by 

(N  J)27-  2BarbCh.Pr.(Bk.V)177.  weekly    payments;    the    complaint 

note.     In  Newhall  v.  Sherman,  124  stated  this  fact  and  further  alleged 

Cal  509  57  Pac.  387,  it  was  held  that  that  none  of  the  payments  had  been 

the  complaint  must  show  that  the  made  since  a  certain  date  referred 


Y26  REMEDIES    FOR    ENFORCEMENT   OF    LTEN8,  ETC.  [§  467. 

equity  court  will  not  take  jurisdiction,  if  there  has  been  any 
proceedings  at  law  to  foreclose  the  mortgage,  the  bill  should 
allege  that  no  proceedings  at  law  have  been  had  to  recover 
the  debt,  or,  if  there  have  been,  the  same  have  been  discontinued, 
or  the  remedy  at  law  has  been  exhausted.* 

When  the  mortgage  is  given  by  an  administrator  in  pursu- 
ance of  the  authority  of  a  court,  or  by  a  trustee,  it  is  not  nec- 
essary to  set  forth  in  the  bill  all  of  the  proceedings  authorizing 
the  mortgage;  it  is  enough  to  allege  the  order  of  the  court  by 
setting  it  out  in  h<xG  verba  or  in  substance.^ 

If  the  action  for  foreclosure  is  commenced  by  an  assignee  of 
the  mortgage,  the  fact  should  be  set  forth  in  the  comi)laint  by 
allegations  sufficient  to  show  that  the  mortgage  has  been  as- 
signed and  that  the  complainant  is  the  owner  of  it  and  of  the 
indebtedness  it  secures.''  But  in  such  case  it  is  sufficient  to  set 
forth  the  assignment  according  to  its  legal  import  and  effect 
without  reference  to  its  form  or  phraseology.*  And  where  it 
was  alleged  that  the  plaintiff  was  the  owner  and  holder  of  the 
note  and  mortgage,  and  that  the  same  had  been  obtained  by 
purchase  and  assignment  for  a  valuable  consideration,  it  was 
not  sufficient  to  admit  evidence  showing  the  assignment  of  the 
mortgage  to  the  plaintiff  by  an  assignee  of  the  mortgagee.*  If 
it  is  sought  to  foreclose  a  mortgage  for  failure  to  pay  tiie  inter- 
est, a  clause  in  the  mortgage  stipulating  that  upon  such  failure 
the  whole  amount  of  the  mortgage  may  be  considered  due  and 
payable,  the  bill  of  complaint  should  set  out  by  proper  allega- 

to.     It  also  alleged   that  there  was  ditions  of  the  bond,  it  was  held  to  be 

justly  due  plaintiff  thereon  a  certain  a  sufficient  statement  of  a  cause  of 

specified  sum.     Calhoun  v.  Callioun,  action.     Troy,  etc.  Bank  v.  Bowman, 

63  N.  Y  S.  601;  post,  ^  472.  43  Barb.  (N.  Y.)  6:^9;  Hohl  v.  Reed,  8 

1  Pattison  v.  Powers,  4  Paige  Cli-  Kan.  App  54.  53  Pac.  676,  It  is  not 
(N.  Y.)  549:  Bailey  v.  Gould,  Walk,  necessary  to  set  out  the  real  con- 
Ch.  (Mich.)  478.  sideration   of  the   mortgage  or  the 

2  Stow  V.  Schiefferly,  120  Cal.  609,  exact  amount  due.  Collins  v.  Car- 
52  Pac.  1000.     In  Wagnon  v.  Pease,  lyle,  13  111.  254. 

104  Ga.  417,  30  S.  E.  95,  where  a  com-        » Hayes  v.  Servis,  17  Wis.  210;  Sun, 

plaint    set    out    the     indebtedness,  etc.  Ass'n  v.  Buck,  55  N.  Y.  S.  262. 
clearly  alleging  that  the  mortgage        <  Martin  v.  MoReynolds,  6  Mich.  70; 

was  given  to  secure  the  payment  of  Sill  v.  Ketchum,  Harr.  Ch.  (Mich.) 

a  bond,  for  whic^h  the  time  for  tlie  423;  Livingston  v.  Jones,  Harr.  Ch. 

payment  of  tlie  indebtedness  was  ex-  (Mich.)  165. 

tended,  and  showing  that  the  mort-        »  Brown  v.  Elwell,  17  Wash.  442,  4t 

gagor  failed  to  comply  with  the  con-  Pac.  1068. 


§  467.]  REMEDIES   FOB    ENFORCEMENT   OF    LIENS,  ETC.  727 

tions  the  facts  relied  upon,  and  with  sufficient  certainty  to  show 
that  because  of  such  failure  the  complainant  may  declare  the 
whole  amount  due.     The  holdings  of  the  courts  in  the  several 
states  have  not  been  entirely  harmonious  upon  this  question. 
In  some  jurisdictions  it  is  held  that  the  option  of  the  mortgagee 
to  declare  the  entire  amount  of  the  mortgage  due  must  be  al- 
leged and  shown  to  have  been  exercised  by  notice  to  the  mort- 
o-r^or,  while  in  other  jurisdictions  it  is  held  that  the  filing  of 
the  bill  of  complaint  claiming  the  whole  amount  due  and  pay- 
able by  reason  of  such  failure  is  sufficient  notice.^     The  com- 
plaint should  correctly  describe  the  premises  that  are  mort- 
gaged, and  if  they  are  not  properly  described  the  description 
tiU  not  be  cured  by  a  prayer  for  general  relief.^   The  descrip- 
tion, however,  need  only  be  sufficiently  accurate  and  certain 
to  point  out  the  land  or  property  mortgaged.    While  it  should 
generally  follow  the  description  set  forth  in  the  mortgage,  if 
it  describes  in  other  terms  the  same  property  it  would  be  suf- 
ficient«  The  title  of  the  mortgagor  to  the  premises  mortgaged 
is  not  in  question  in  a  foreclosure  suit;  it  would  therefore  not 
be  proper  to  make  one  claiming  an  adverse  title  a  defendant 
and  ask  to  have  the  title  determined.     But  where  it  is  con- 
ceded that  one  holds  the  legal  title  for  another,  the  question 
whether  he  has  a  beneficial  interest  therein  may  be  litigated 
in  foreclosure  as  incidental  to  the  relief  sought,  and  such  a 

1  In  Wheeler  V.Foster.  82  111.  App.  might  elect  to  declare   the  whole 

153  where  the  bill  was  filed  to  fore-  debt  due,  and  the  action  was  brough 

cLsea    trut    deed   for    the    whole  because  of  default  m  paying  the  fi^^st 

amount   "cured  by  it  because  of  a  note,  it  was  held  that  because  of  a 

rfaultinthe  payment  of  an  instal-  failure  to  f  «f  ^^  trt.^^^.t 

tnent  of  the  interest,  the  note  which  clare  the  whole  debt  ^ue  the  com 

was  secured  not  having  by  its  terms  plaint  was  not  demurrable  for  the 

Ttu  ed.  it  was  held  that  an  al.ega-  reason  that  the  -— ---/J/ 

Uoa  should  have  been  made  that  the  the  suit  and  a  prayer  for  a  fore- 

hoTderof  thenote,orsomeoneforhim,  closure  for  the  entire  sum  wasa  suflR- 

had  exercised  the  option  to  declare  cient  election.                    ,^  t       a 

the  principal  sum  due  becauseof  the  ^  Murphy  v  Robinson,  50  La.  Ann. 

failure  to  pay  the  instalment  of  in-  213  23  So.  '^~^_ 

terest.     But  in  Barney  v.  McClancy,  "Peachy  v.  Witter,  131  Gal-  316,  6^ 

15  Coo  App.  63.  60  Pac.  948,  where  Pac.468;  Slater  v.  Breese^  ^6M  ch^,7. 

Jhe  mortgage    provided  that,  upon  *  Joslin  v.  Williams    61  Neb    8o0. 

tbe  mori^a^y    P  Branch    v.   Wilkens 

default  in  payment  of  any  ot  tbe  m  i^.                              ao  ^  ^^T  mss 

several     notes    the    mortgage    was  (Tex.  Civ.  App.,  1901),  63  S.  W.  1083. 
given    to    secure,    the     mortgagee 


728  EEMEDIES    FOB   ENFOECEMENT    OF    HENS,  ETC.  [^  40S. 

bill  has  been  held  not  to  be  multifarious  because  it  joins  such 
a  party  and  asks  such  determination.^  And  where  the  pay- 
ment of  the  debt  or  performance  of  the  obligation  is  secured 
by  executing  and  delivering  a  deed  of  conveyance  instead  of  a 
mortgage,  the  bill  may  ask  to  have  the  deed  declared  to  be  a 
mortgage  by  setting  out  the  facts  and  circumstances  and  purpose 
of  its  execution,  and  in  the  same  bill  pray  for  its  foreclosure  if 
the  debt  or  obligation  is  due.^  And  so  a  bill  for  the  foreclos- 
ure of  a  mortgage  or  a  deed  may  ask  to  have  a  mistake  cor- 
rected and  a  decree  for  foreclosure;  such  a  bill  would  not  be 
multifarious. 

The  prayer  of  the  bill  should  be  to  determine  the  amount 
due;  that  the  defendant  shall  pay  to  the  complainant  what- 
ever sum  shall  appear  to  be  due,  together  with  the  costs  of  the 
proceeding,  and  that  in  default  of  such  payment  the  mort- 
gaged premises  maj'^  be  sold  according  to  the  rules  and  prac- 
tice of  the  court  to  satisfy  such  debt  and  costs.  That  in  case 
of  failure  to  pay  or  redeem  the  property  from  the  foreclosure, 
the  defendant  and  all  persons  claiming  under  him  may  be  for- 
ever barred  and  foreclosed  of  all  right  or  equity  of  redemption 
of  said  mortgaged  property  and  a  prayer  for  general  relief. 
The  form  of  the  prayer,  however,  depends  upon  the  particular 
object  of  the  proceeding  and  must  conform  to  the  statutes  of 
the  particular  jurisdiction  in  which  the  proceeding  is  had. 

§  4G8.  Defenses. —  The  defenses  to  actions  for  foreclosure  in 
equity  are  those  generally  invoked  in  equity  cases.  They  may 
be  by  demurrer,  plea  or  answer,  and  the  general  rules  applied 
and  so  often  mentioned  and  explained  in  this  treatise  are  ap- 
plicable in  determining  which  of  these  defenses  should  be 
interposed  in  a  given  case.  Fraud,  accident  or  mistake  furnish 
a  good  defense  to  actions  of  this  kind,  and  are  applicable  as  in 
other  cases.  The  right  of  the  defendant  to  the  subject-matter 
of  the  defense  must  be  properly  alleged  in  the  answer  and 
proven  in  the  case.  And  where  it  was  alleged  that  the  mort- 
gage was  executed  to  the  mortgagee  in  trust  for  a  certain 
mining  company  which  owned  the  property  purchased,  and 
for  which  the  mortgage  was  given,  and  that  the  mortgagee 
had  no  interest  in  the  mortgage,  but  failed  to  allege  that  the 

1  Metropolitan,  etc.  Co,  v.  Columbus  Ry.  Co.,  93  Fed.  689. 

2  Abbott  V.  Godfroys  Heirs,  1  Mich.  178. 


§  -108.]  KEMEDIES    FOR    ENFOKCBMENT   OF    LIENS,  ETC.  T29 

miaino-  company  was  either  a  partnership  or  a  corporation  or 
that  It  had  anv  legal  existence,  a  defense  that  the  defendant 
had  paid  the  money  due  upon  the  mortgage  to  such  a  company 
was  lield  insuMicient.^ 

Where  fraud  is  relied  upon,  the  several  facts  necessary  to 
constitute  the  fraud  and  to  bring  it  home  to  the  mortgagee 
must  be  distinctly  stated  in  the  answer.     And  it  has  been  said 
that  "  to  constitute  a  good  defense,  it  is  necessary  not  only  to 
show  that  the  defendant  was  defrauded,  but  also  that  he  was 
defrauded  by  the  mortgagee  or  his  agents;  or  at  least  to  show 
that  the  mortgagee     .     .     •     was  aware  that  the  defendant 
had  been  deceived  and  defrauded."'^     And  where  fraud  was 
relied  upon  as  a  defense,  but  there  was  no  specific  allegation  as 
to  the  person  who  committed  it,  it  was  held  to  be  no  defense  to 
theaction.^     Where  the  defendant  set  up  in  his  answer  that 
the  mortcrage  was  given  to  secure  the  purchase-money  of  lands 
which   the   mortgagee  agreed  to  convey  to  him,  but  instead 
^hereof  conveved  other  lands  than  those  described  in  the  raort- 
crage  it  was  held  to  be  a  good  defense  in  an  action  to  foreclose 
the  mort>rao-e.*     A  defense  of  this  nature,  however,  must  be 
distinguished  from  those  cases  where  it  is  sought  to  try  and 
determine  in  a  foreclosure  suit  a  paramount  or  adverse  title; 
for  it  is  a  general  rule  that  title  to  the  premises  cannot  be  set- 
tled and  determined  in  proceedings  for  foreclosure  of  a  mort- 
gage    Nor  would  such  a  defense  be  available  except  in  those 
cases  where  the  mortgagor  has  been  evicted  from  the  purchased 
premises  upon  which  the  mortgage  was  given  to  secure  the 
purchase  price,  or  a  portion  thereof;^  or  where  the  title  under 

1  Le  Clare  v.  Thibault.  41  Oreg.  601,  ^  Towles  v.  Edwards  (Ky  1902)  68 
69  Pac.  552;  Richardson  v.  Tolman,  S.  W.  1107;  Merchants' Nat  Bank  v 
44  M,ch.   379;  Smith  v.   Fiting,   87     Snyder,  52  W^Jt  ' 

,,.   .    ..^  affirmed,  170  N.  Y.  565. 

2  Aiken  V.  Morris.  2  Barb.  Ch.  (N. Y.)  *  Allen  v.  Shackelton.  15  Ohio  St 
140,  I4:i  In  Allen  v.  Shackelton.  15  145;  Smith  v  Newton  38  111.  ~oO, 
Ohio  St  145.  it  was  held  that,  where  Weaver  v.  Wilson.  48  111.  125. 

a  mortgage  was  given  to  secure  pur-  ^  In  Joslin  v.  Williams.  61  Neb.  859. 

^hasenVney.  the    mortgagor    in   a  861.  held:  " In  an  act.on  to  foreclose 

foreclosure  proceeding  might  set  up  a  mortgage  .t  is  no  defense  to  the 

as  defense  a  counter-claim  for  dam-  mortgagor,  or  to  persons  claiming  in 

ages  because  of  fraud  practiced  by  privity  with  him,  or  succeeding  to 

the   mortgagee  in  the  sale  of  the.  his  estate,  subsequently  to  the  mort- 

tne   mortgage  ^^  ^^^  ^.^^  ^^  ^^^^  ^^^^^^ 

premises.  o  & 


730 


REMEDIES    FOB   ENFORCEMENT    OF    LIENS,  ETC.  [§  468. 


which  the  mortgagor  held  has  been  extinguished  so  that  he 
can  at  any  time  be  evicted.^  Nor  will  a  mortgagor  be  per- 
mitted to  allege  and  prove  by  way  of  defense  the  failure  of 
his  own  title  to  the  premises  mortgaged;  nor  will  a  corpora- 
tion mortgagor  be  heard  to  deny  its  corporate  existence.  And 
where  a  railroad  company  had  mortgaged  its  property  and  is- 
sued bonds  as  a  corporation  and  procured  money  upon  said 
bonds  and  mortgage,  it  was  held  that  the  company  was  es- 
topped from  denying  its  own  corporate  existence,  the  court  say- 
ino-:  "  Such  a  defense  is  repugnant  to  every  sentiment  of  jus- 
tice and  good  faith.  That  this  doctrine  of  equitable  estoppel, 
or  estoppel  in  pais,  by  which  a  person  who  has  represented  to 
another  the  existence  of  a  certain  state  of  facts,  and  thereby 
induced  him  to  act  on  the  faith  of  their  existence,  is  concluded 


tion  of  the  instrument   he  had  no 
title  to  the  premises  souglit  to  be  af- 
fected, or  that  the  title  afterwards 
failed,  or  that  there  is  an  outstand- 
ing paramount  title.    Persons  claim- 
ing such   title  cannot   properly   be 
made  parties  to  the  foreclosure  suit, 
and  in  their  absence  their  rights  can 
neither  be  litigated  in  the  action  nor 
affected   by    the    decree."     Wiltsie, 
Mortgage  Foreclosures,  p.  420,  and 
cases  cited  in  the   note;    Chamber- 
lain V.  Lyell,  3  Mich.  448;  Horton  v. 
Saunders.  l:i  Mich.  409;  Farmers', etc. 
Bank     v.    Bronson,    14    Mich.    J361; 
Branch  v.  Wilkens  (Tex.  Civ.  App., 
1901),  63  S.  W.  1083.     In  Murray  v. 
Etchepare,  129  Cal.  318,  321.  the  court, 
in   discussing   the  appearance  of  a 
defendant,   say:    "If   his  title  be  a 
paramount  one,  it   will   not  be  af- 
fected by  a  foreclosure  whether  he 
apiear  or  not;  but  if  he  undertakes 
to  set  up  such  paramount  title,  it 
will  not  be  litigated  in  the  action. 
In  such  case  the  plaintiff  could  de- 
mur to  the  answer,  which  was  done 
in   Ord   v.  Bartlett  (83  Cal.  428),  or 
could  dismiss  the  action  as  to  the 
adverse  claimant;  but  in  no  event 
would  the  decree  of  foreclosure  af- 
fect   the    paramount    and    adverse 


title.  There  is  no  reason  why  the 
principle  does  not  apply  to  an  equi- 
table paramount  titleas  well  as  to  the 
legal  one."  In  Croghan  v.  Minor,  53 
Cal.  15,  the  court  said:  "It  is  manifest 
that  those  claiming  either  legal  or 
equitable  estates  adversely  to  that 
of  the  mortgagor  are  not  proper  par- 
ties to  such  a  proceeding."  Sichler 
V.  Look.  93  Cal.  608,  609.  In  HulHsh 
V.  O'Brien,  20  N.  J.  Eq.  230.  the  court 
say:  "It  has  been  decided  in  tiiis 
court  repeatedly,  .  .  .  that  a  de- 
fect of  title  to  mortgaged  premises 
conveyed  by  the  mortgagee  is  no 
defense  in  a  suit  for  the  foreclosure 
of  a  mortgage  for  part  of  the  con- 
sideration. .  .  .  Such  has  been 
the  uniform  doctrine  of  this  court, 
and  it  is  in  accord  with  the  decisions 
of  other  states."  Citing  numerous 
authorities.  Bumpus  v.  Platner,  1 
Johns.  Ch.  (N.  Y.)  213;  Abbott  v. 
Allen,  2  Johns.  Ch.  519;  Banks  v. 
Walker,  2  Sandf.  Ch.  (N.  Y.)  344; 
Stahl  V.  Hamraontree,  72  Ind.  103; 
Byrd  v.  Turpin,  62  Ga.  591;  Abbott 
V.  Allen,  2  Johns.  Ch.  519,  7  Am.  Dec. 
554;  Ludlow  v.  Oilman,  18  Wis.  552; 
Alden  v.  Pryal,  60  Cal.  215. 

iSimers  v.  Saltus,  3  Demo  (N.  Y.^ 
214. 


§  468.]  REMEDIES    FOR   ENFORCEMENT   OF    LIENS,  ETO.  731 

from  averring  against  such  person  and  to  his  injury  that  such 
representations  were  false,  is  as  applicable  to  corporations  as 
to  natural  persons,  will  hardly  be  denied."  ^ 

False  and  fraudulent  representations  as  to  the  value  of  the 
property  may  be  set  up  by  the  vendee  in  defense  to  ihe  fore- 
closure of  a  purchase-money  mortgage,  but  where  the  property 
has  any  value  and  it  has  not  been  returned  to  the  fraudu- 
lent seller,  the  contract  therefor  having  been  affirmed,  this 
defense  can  only  extend  to  mitigation  of  damages,  for  the  con- 
tract cannot  be  rescinded  as  long  as  the  purchaser  and  mort- 
gagor retain  the  thing  purchased.^  Where  the  mortgage  was 
given  to  secure  the  payment  of  a  note,  it  was  held  that  the 
defendant  may  show  the  same  matters  in  defense,  except  the 
statute  of  limitations,  which  he  might  show  in  defense  of  an 
action  on  the  note.  But  where  a  defense  that  the  note  was  pro- 
cured by  fraud  or  duress  may  be  interposed  in  an  action  upon 
the  note,  it  may  be  invoked  in  an  action  to  foreclose  a  mort- 
gage given  to  secure  such  note.'  It  is  a  general  doctrine  that 
a  mortgage  executed  with  a  fraudulent  intent  is  totally  void  and 
will  not  be  regarded  in  equity  as  a  valid  security  for  any  pur- 
pose.* And  where  it  is  evident  that  undue  advantage  was 
taken  of  the  ignorance  and  necessity  of  a  mortgagor  in  obtain- 
ing a  mortgage  upon  his  property,  it  was  held  that  in  such  a 
mortgage  the  minds  of  the  parties  never  met,  and  that  equity 
will  relieve  a  mortgagor  in  such  case.'^     And  so  false  represen- 

1  Racine,  etc.  Ry.  Co.  v.  Farmers',  tains  the  thing  purchased,  he  cannot, 

etc.  Co.,  49  IlL  331,  847.  by  the  well  settled  rule  of  law,  re- 

2 In  Sanborn  v.  Osgood,  16  N.  H.  scind  the  purchase."  Merchants' 
112,  it  was  said:  "It  is  an  equally  Nat.  Bank  v.  Altamont  Club,  65  N. 
familiar  rule  of  law  that,  in  order  to  Y.  S.  994, 170  N.  Y.  505;  Bird  v.  Da- 
render  tlie  fraud  available  to  the  vis,  14  N.  J.  Eq.  467;  Carlton  v.  Hu- 
purchaser  to  avoid  the  note  alto-  lett,49  Minn.  308, 51  N.  W.  1053. 
gether,  it  is  indispensably  necessary  3  Vinton  v.  King,  86  Mass.  (4  Allen), 
that    the    property,    if  not   wholly  562. 

■worthless,  should  be  first  restored  to  *  Weeden  v.  Hawes,  10  Conn.  50. 

the  seller.     A  party  cannot  rescind  5  Lyon  v.  Smith,  2  App.  D.  C.  37; 

the   contract  while  he  retains  any  Evans  v.  English  (Ky.,  1889),  10  S.  W, 

part  of  the  consideration,  and  it  is  626;  Sackner  v.  Sackner,  39  Mich.  39; 

exactly  upon  this  ground  that  he  is  Angierv.  Ash.  26N.  H.  99.  But  where 

excused  from  returning  a  con-sidera-  the  deception  or  fraudulent  represen- 

tion  that  is  wholly  worthless.    When  tation  causes  no  injury  it  can  be  set 

the  party   derives  any  benefit  from  up  as  a  defense.     Marsh  v.  Cook,  32 

the  purchase  and  so  long  as  he  re-  N.  J.  Eq.  262. 


732  REMEDIES    FOB    ENFORCEMENT   OF   LIENS,  ETC.  [§  468. 

tations  as  to  the  productiveness  of  the  land  purchased  may 
be  set  up  as  defense  to  the  foreclosure  of  a  mortgage  given  for 
the  purchase  price.'  Akin  to  the  defense  for  false  representa- 
tions and  fraud  in  the  obtainmg  of  the  mortgage  is  the  defense 
of  undue  influence.  It  may  be  generally  said  that  a  contract 
made  between  persons  sustaining  confidential  relations,  obtained 
by  reason  of  undue  influence,  will  be  set  aside  as  fraudulent. 
And  where  such  allegations  are  made  in  the  answer  it  can  only 
be  met  by  a  showing  of  the  utmost  good  faith.^ 

A  defense  upon  the  ground  of  mistake  ma}'  be  invoked 
wtiere  the  mistake  is  mutual;  and  where  fraud  was  alleged 
in  that  false  representations  as  to  the  quantit}^  of  the  land  sold 
were  made  by  the  plaintiflF,  it  appearing  that  the  plaintiff  did 
not  know  the  representations  to  be  false,  it  was  held  that  re- 
lief might  be  granted  on  the  ground  of  mutual  mistake.'  Mis- 
take, however,  cannot  be  invoked  as  a  defense  where  the  inter- 
ests of  innocent  third  parties  intervene.  Mistake  must  be  as 
to  a  material  fact,  and  where  it  is  shown  to  be  mutual,  if  it  is 
as  to  matters  which  would  not  entirely  avoid  the  mortgage  — 
as,  for  example,  a  mistake  in  the  description  of  the  property, 
or  the  amount  secured  by  the  mortgage, —  the  court  may  at  the 
hearing  make  a  decree  correcting  the  mistake  and  for  a  fore- 
closure of  the  mortgage  for  the  proper  amount  upon  the 
proper  description.*  Generally,  it  may  be  said  that  if  the 
mistake  be  one  of  law  it  cannot  be  made  a  ground  of  equi- 
table relief;  but  where  the  fraudulent  misrepresentations  or 
concealment  of  matters  of  law  are  made  by  those  holding  con- 
fidential relations  to  the  persons  injured,  equity  will  afford 
relief,  and  this  principle  may  be  applied  to  cases  of  foreclosure 
of  mortgages.'^ 

i  Hervey  v.  Parry,  83  Ind-  263.  description  of  the  mortgage  which 
^Spargur  v.    Hall,   62  Iowa,   498;  was  carried  into  the  foreclosure  pro 
Bowe  V.  Bowe,  43  Mich.  195.  ceedings  and  into  the   deed   Ihere- 
^Sweezey  v.  Collins,  36  Iowa,  589.  under,  it  was  held  that  a   court  of 
*  French  v.  De  Bow,  38  Mich.  708;  equity  had  power,  at  the  instance  of 
Sheldon   v.    Holmes,    58    Mich.    138.  the  purchaser  claiming  under  him. 
And  in  Andrews  v.  Gillespie,  47  N.  to  correct  the  misdescription  in  the 
Y.  487,  it  was  held  that  a  mistake  in  mortgage  in  the  foreclosure  decree 
the  drawing  of  the  instrument  may  and  in  the  deed  so  as  to  make  it  con- 
be  reformed,   or  a  mistake   in   the  form  with   the  true  intent  of  the 
terms  of   payment.     In   Greeley   v.  parties  to  the  mortgage. 
De  Cottes,   24  Fla.   475,   5  So.   239,  5  Tompkins  v.  HoUister,  60  Mich. 
where  there  was  a  mistake  in  the  470. 


I  460.]  EEMEDIES    FOR    ENFOKOEMENT   OF    LIENS,  ETC.  733: 

Usury  has  been  held  to  be  a  defense,  and  especially  would 
this  be  true  where  the  statute  of  the  state  avoids  the  instru- 
ment for  the  reason  that  usurious  interest  is  made  payable  by 
it.^  It  is  a  general  rule  that  a  foreclosure  suit  can  be  defended 
only  on  the  grounds  set  up  in  the  answer.^  The  complain- 
ant must  be  the  owner  of  the  mortgage  or  of  the  indebted- 
ness which  is  the  basis  of  his  claim  and  which  the  mortgage 
was  given  to  secure.'  And  where  it  appeared  that  ho  had 
parted  with  his  interest  before  the  answer,  it  was  held  a  good 
objection  to  the  foreclosure  proceeding.''  But  where  a  mort- 
gage secured  a  note  payable  to  either  of  two  pa3'^ees,  though 
it  was  executed  to  one  alone,  it  was  held  that  it  might  be  en- 
forced by  either.*  The  defense  that  the  action  is  premature 
may  always  be  made,  and  when  an  agreement  supported  by  a 
good  consideration  has  been  made  by  the  owner  of  the  mort- 
gage extending  the  time  of  payment,  and  the  extended  time 
has  not  expired,  it  may  be  interposed  as  a  defense  to  an  action 
of  foreclosure.® 

§  469.  Compelling  foreclosure. —  A  subsequent  mortgagee 
cannot  compel  a  prior  mortgagee  to  foreclose  his  mortgage; 
his  only  remedy  is  to  tender  the  amount  due  on  the  prior  mort- 
gage and  obtain  the  rights  of  the  prior  mortgagee,  either  by  as- 
signment, when  he  may  foreclose  the  prior  mortgage,  or  by  dis- 
charging it,  when  he  may  be  subrogated  to  the  rights  of  the  prior 
mortgagee.  Nor  can  a  junior  mortgagee  tile  a  bill  to  foreclose 
his  own  and  a  prior  mortgage,  even  though  he  prays  in  the  bill 
that  the  prior  mortgage  on  the  sale  of  the  premises  be  first 
paid.''     It  is  a  principle  well  settled  that  the  prior  mortgagee 

iSee  2  Barb.  Ch.  Pr.,  Bk.  5,  p.  178,  'Threefoot   v.    Hillman,   130  Ala. 

note,  ami  cases  cited.  244,  30  So.  513;  Kelly  v.  Longshore, 

2  Hignian  V.  Stewart.  38  Mich.  513.  78  Ala.  203.     In   Lambertville  Nat. 

3  Parker  v.  Randolph,  5  S.  Dak.  Bank  v.  McCready,etc.  Co.  (N.  J.  Eq., 
549,  29  L.  R.  A.  33;  Town  v.  Alex-  1888),  1  L.  R.  A.  334.  33."),  the  court 
ander,  IS.")  III.  254,  56 N.  E.  1111;  Petti-  say:  "The  first  mortgagee  is  per- 
bone  V.  Edwards,  15  Wis.  95.  fectly  secure  in  his  rights  as  such, 

♦Wallace  v.  Dunning,  Walk.  Ch.  and  has  an  undoubted  right  to  stand 
(Mich.)  416.  But  see  Spear  v.  Had-  upon  them  unmolested  bj'  any  sub- 
den,  31  Mich.  265.  sequent   incumbrancer,   just  as    he 

^Collyer  v.  Cook  (Ind.  App.,  1902),  contracted  for  those  rights.    As  long 

62  N.  E.  655.  as  the  prior  incumbrancer  remains 

''Seaton  v.  Fiske,  128  Cal.  549,  61  passive,  I  cannot  comprehend  how  a 

Pac.  666;  Kransz  v.  Uedelhofen,  193  volunteer,  as  to  him,  can  put  him  to 

111.  477,  62  N.  E.  239.  any  inconvenience  or  to  the  hazard 


734 


REMEDIES    FOR   ENFORCEMENT    OF    LIENS,    ETO.  [§  469. 


has  the  right,  as  long  as  his  mortgage  is  unpaid,  to  hold  the 
same  as  security  for  his  debt,  and  this  security  and  the  right 
to  continue  and  postpone  the  payment  of  the  debt  cannot  be 
taken  from  him  except  by  payment  when  due.  The  only  rem- 
edy the  junior  mortgagee  or  lien  holder  has  that  he  can  en- 
force against  the  prior  mortgagee  is  to  pay  and  discharge  the 
mortiraore  when  it  is  due.  And  it  has  been  held  that  a  cred- 
itor  cannot,  before  he  has  obtained  judgment  on  his  debt, 
come  into  a  court  of  chancery  and  ask  for  the  foreclosure  of 
mortgages  praying  that  the  property,  after  being  subjected  to 
the  payment  thereof,  may  be  applied  to  the  payment  of  his 
debt.'  Generally  it  may  be  said  that  a  bondholder  cannot 
compel  the  foreclosure  of  the  mortgage  securing  his  bond  until 
after  the  same  has  become  due  and  he  has  requested  the  trus- 
tee named  therein  to  foreclose  the  same  and  he  has  refused. 
But  if  such  request  has  been  made  and  the  trustee  has  refused, 
then  an  individual  bondholder  may  sustain  the  action.^ 


of  any  costs.  Of  course,  in  such  a 
case,  should  he  come  in  and  prove 
his  mortgage,  the  court  could  reach 
the  matter  and  would  have  tiie 
right  to  make  an  equitable  decree; 
but  as  long  as  tlie  prior  mortgagee 
is  not  the  actor,  and  refuses  to  re- 
spond to  the  process  of  any  subse- 
quent iticumbrancer,  I  cannot  but 
think  that  he  is  justified  in  doing  so, 
and  tliat  it  would  be  highly  inequi- 
table for  the  court  to  attempt  to 
compel  him  to  proceed  either  to 
foreclose  or  to  answer.  Nor  does 
the  case  present  the  slightest  hard- 
ship. The  subsequent  mortgagees 
accepted  their  mortgages  with  full 
knowledge  of  the  rights  of  the  first 
mortgagee,  and  of  the  extent  of  their 
lien.  They  labor  under  no  surprise. 
Any  one  of  them  can  accomplish  all 
they  ask  for  on  the  plainest  prin- 
ciples of  equity.  They  have  the 
right  to  discharge  the  said  first 
mort::rage  and  ask  that  they  may 
stand  in  the  place  of  the  said  first 
mortgagee,  1  am  of  the  opinion 
that  any  subsequent  incumbrancer 


can  do  this.  I  can  see  no  reason  for 
requiring  the  complainant  in  this 
case  to  take  any  particular  steps 
in  that  direction.  If  he  is  willing  to 
proceed  and  run  the  risk  of  making 
his  money  without  availing  himself 
of  all  the  rights  which  the  law  gives 
to  him,  it  seems  most  plain  to  me 
that  he  may  do  so.  And  what  rights 
one  subsequent  mortgagee  has  in 
this  particular  another  has  as  welL 
Therefore  any  such  mortgagee  can 
redeem  the  said  first  mortgage  and 
thus  enable  himself  to  do  exactly 
what  he  claims  it  is  the  duty  of  the 
first  mortgage-holder  to  do  —  that 
is.  bring  all  the  lands  into  the  mar- 
ket under  the  same  decree  and  thus 
enable  the  court  to  marshal  the  fund 
equitably." 

1  Warner  v.  Everett,  46  Ky.  (7  B. 
Mon.)  262;  Guarantee,  eta  Co.  v. 
Powel,  loO  Pa.  St.  16,  24  Atl.  345. 

-  In  Citizens'  Bank  v.  Los  Angeles, 
etc.  Co..  lyi  Cal.  177.  191,  the  court 
say:  "It  is  well  settled,  I  think,  that 
any  holder  of  unpaid  coupons  may 
sue  upon  refusal  of  the  trustee  to  do 


§  470.]  REMEDIES    FOR   ENFORCEMENT    OF    LIENS,  ETC.  735 

§  470.  Defenses  by  cross-bill.— Where  a  defendant  to  the 
bill  of  foreclosure  seeks  affirmative  relief  affecting  the  prop- 
erty to  which  the  action  relates,  he  should  file  a  cross-bill,  or 
in  some  jurisdictions  an  answer  in  the  nature  of  a  cross-bill 
praying  such  relief.     As  where  the  mortgagor  deeded   the 
property  covered  by  the  mortgage  to  a  trustee  on  the  date  of 
the  making  of  the  mortgage;  the  trustee  to  take  possession,  to 
collect  rents  and  profits  and  apply  them  to  the  payment  of 
interest  and  taxes;  the  deed  obligating  him  to  make  certain 
advances  to  the  mortgagor;  the  life  of  the  trust  being  made 
dependent  upon  the  existence  of  the  mortgage;  the  trustee  hav- 
ing a  lien  for  advances  made,—  it  was  held  that  the  trustee  who 
was  made  a  party  defendant  to  the  foreclosure  might  file  a 
cross-complaint  praying  that  the  lien  of  the  trustee  be  fore- 
closed and  that  the  cross-bill  might  extend  to  all  the  property 
covered  by  the  lien  of  the  trustee  and  not  be  confined  to  the 
property  covered  by  the  original  mortgage.^     Allegations  in 
the  cross-bill,  setting  up  rights  under  mortgages  which  are  not 
included  in  the  plaintiff's  cause  of  action,  and  praying  relief 
with  reference  thereto,  are  proper  for  the  reason  that  they 
may  affect  the  rights  of  the  defendant  in  the  property  which 
is  the  subject  of  the  foreclosure.^    But  it  has  been  held  that  in 

so  after  request  upon  him.  Chicago,  sible  for  a  majority  to  deprive  the 
etc.  Rj.  Co.  V.  Fosdick,  100  U.  S.  47;  minority  of  the  remedy  of  the  fore- 
and  see  General  Electric  Co.  v.  Le  closure  altogether."  Citizens*  Bank 
Grande,  etc.  Co..  79  Fed.  25,  where  v.  Los  Angeles,  above  cited, 
the  deed  authorizes  the  trustee  to  i  Mortgage,  etc.  Trust  Co.  v.  Mar- 
proceed  upon  the  written  request  of  quam,  41  Oreg.  391,  69  Pac.  37;  Ran- 
a  majority  of  the  bondholders.  It  is  dall  v.  Reynolds  (N.  J.  Eq.,  1901).  48 
held  in  those  cases  that  he  cannot  Atl.  768.  A  junior  mortgagee  need 
act  witliout  such  petition.  But  the  not  file  a  cross-bill  to  protect  his 
bondholder  has  a  right  of  action  interest  in  surplus.  Gardner  v.  Cohn, 
upon  showing  that  the  trustee  has  191  111.  553,  61  N.  E.  492;  Wallen  v. 
refused  to  bring  the  suit,  even  though  Moore,  187  111.  190,  58  N.  E.  392. 
the  trustee  may  have  been  justified  2 Stockton,  etc.  Soc.  v.  Harrold,  127 
under  the  provision  of  the  deed  in  Cal.  612.  60  Pac.  165;  Wade  v.  Miller, 
refusing.  If  this  were  not  so,  it  59  N.  Y.  S.  76.  A  prior  mortgagee 
would  result  in  placing  the  same  need  not  file  a  cross-bill  to  obtain  re- 
limitation  on  the  right  of  the  indi-  lief.  Interstate,  etc.  Ass'n  v.  Ayers, 
vidual  bondliohler  to  bring  tiie  ac-  177  111.  9,  52  N.  E.  343.  A  purchaser 
tionas  is  placed  on  the  trustees—  subject  to  the  mortgage  need  not 
namely,  the  written  request  of  a  file  a  cross-bill  to  protect  his  inter- 
majority  of  the  bondholders,— and  ests.  Caruthers  v.  Hall.  10  Mich.  40. 
this  would  practically  make  it  pos-  One  holding  a  mortgage  as  security 


736  REMEDIES    FOR    ENFORCEMENT   OF    LIENS,  ETC.  [§  471. 

a  foreclosure  proceeding  a  defendant  who  claims  a  title  to  the 
property  paramount  to  that  of  both  the  mortgagor  and  the 
mortgagee  cannot  set  up  and  try  that  issue  by  a  cross-bill.^ 

§  471.  Proceedings  in  foreclosure  before  final  hearing. — 
Injunctions  to  restrain  waste,  receivers  to  take  charge  of  and 
protect  the  interests  of  the  parties,  are  often  sought  for  and 
olitained  by  interlocutory  proceedings  in  actions  for  the  fore- 
closure of  mortgages.  The  reasons  for  issuing  an  injunction 
or  appointing  a  receiver,  applicable  generally  in  equity  cases, 
apply  in  actions  for  foreclosure.  As  where  the  owner  in  pos- 
session threatens  to,  or  is  committing  waste  and  thus  depleting 
the  mortgage  securit}^  and  rendering  it  inadequate  by  cutting 
and  removing  standing  timber  from  the  lands;  removing  build- 
ings or  fixtures  from  the  mortgaged  property,  or  doing  that 
which  renders  the  property  insufficient  security  for  the  debt. 
The  general  rule  in  equity  is,  that  the  mortgagor  in  possession 
has  the  right  to  cut  timber  and  would  no  doubt  have  the  right 
to  remove  fixtures  or  buildings,  and  a  court  of  equity  will  not 
interfere  to  restrain  him  in  the  exercise  of  that  right  unless  it 
is  made  to  appear  to  the  court  that  he  is  cutting  timber  or 
removing  fixtures  to  an  extent  calculated  to  render  the  mort- 
gaged property  inadequate  security  for  the  amount  unpaid 
upon  the  mortgage.  The  whole  estate  is  security  for  the 
money  advanced  and  the  equit}'  court  will  not  allow  it  to  be 
unduly  diminished.  The  injunction  is  allowed  upon  the  prin- 
ciple that  the  security  is  impaired;  the  property  itself  being 
regarded  as  the  primary  fund  for  the  payment  of  the  debt.* 
Where  it  is  necessary  for  the  preservation  of  the  mortgaged 
propertv,  the  court  will  appoint  a  receiver  to  take  charge  of  it, 
but  not  for  mere  slight  reasons.' 

No  settled  rule  can  be  laid  down  determining  in  what  cases 

for  an  indebtedness  due  from  the  1  Del.  Ch.  64;  Maryland  v.  Northern, 

mortgagee    on    foreclosure    by  the  etc.  R  Co.,  18  Md.  193;    1   High  on 

mortgagee  may   file  a  cross-bill  to  Injunctions,  sees.  478.  481. 

protect  his  equities  in  the  mortgage.  ^  Murpiiy  v.  Hoyt,  93  111.  App.  313; 

Wilcox  V.  Allen,  36  Mich.  160.  Horner  v.  Dey.  61  N.  J.   Eq.  55,  49 

1  Murray  v.  Etchepare.  129  Cal.  318,  Atl.  154;  Eastern  Trust,  etc.  Co.  v. 
61  Pac.  9o0.  American  Ice  Co.,  14  App.  D.  C.  304; 

2  Fairbank  v.  Cud  worth,  33  Wis.  Wilson  v.  Wolf,  9  Kan.  App.  347,  61 
358,  362;  Humphrey  v.  Harrison,  1  Pac.  311;  Morris  v.  Branchaud,  51 
Jac.  &  W.  581;  Thompson  v.  Lynan,  Wis.  187. 


§  472.]  REMEDIES    FOR    ENFORCEMENT    OF    LIENS,  ETC.  737 

the  court  will  appoint  a  receiver  in  a  foreclosure  case.  Very 
much  depends  upon  the  particular  case  in  which  the  applica- 
tion is  made.  Generally,  if  the  property  mortgaged  is  inade- 
quate security  and  the  mortgagor  is  insolvent,  the  payment  of 
the  mortgaged  debt  depending  upon  the  property  and  the 
income  or  proceeds  of  it,  and  not  to  appoint  a  receiver  would 
clearly  jeopardize  the  security,  if  not  cause  absolute  loss  to  the 
mortgagee,  the  court  will  make  the  appointment.^  The  ap- 
pointment of  a  receiver  is  always  in  the  sound  discretion  of  the 
court,  and,  the  remedy  being  a  harsh  one,  the  courts  generally 
require  strong  reasons  before  making  such  an  appointment. 

The  power  and  discretion  of  the  court  in  the  appointment 
of  receivers  has  been  frequently  exercised  in  the  foreclosure  of 
mortgages  upon  railroads,  in  cases  where  it  seems  to  be  neces- 
sary that  some  disinterested  person,  under  the  immediate  di- 
rection of  the  court,  should  take  charge  of  the  property,  col- 
lect the  proceeds  and  apply  them  as  the  court  decrees.  The 
federal  courts  have  often  exercised  this  authority  and  there  is 
no  question  as  to  the  right  or  the  propriety  of  such  action  in 
this  country .2 

§  472.  The  hearinj^.— In  nearly  all  the  jurisdictions,  if  not 
all,  there  are  statutory  provisions  for  the  foreclosure  of  mort- 
gages by  advertisement  commonly  understood  as  foreclosures 
at  law.  Where  such  provisions  exist  it  is  optional  with  the 
owner  of  the  mortgage,  or  notes  and  bonds  secured  by  mort- 
gage, to  so  foreclose  the  security  or  to  foreclose  in  equity.  But 
if  proceedings  are  instituted  to  foreclose  the  security  by  ad- 
vertisement, the  owner  of  the  security  cannot  at  the  same 
time  proceed  in  equity.  Nor  will  equity  assume  jurisdiction 
where  proceedings  have  been  commenced  and  are  pending 
to  collect  the  debt  secured  by  an  action  at  law,  or  where 
any  judgment  has  been  obtained  in  a  suit  at  law  for  the 

>  White  V.  Mackey.  85  111.  App.  282;  the  court  will  not  appoint  a  receiver, 

Gooden  v.  Vinke,   87   111    App.  563;  notwithstanding    a    clause    in    the 

Richey   v.  Guild,   99   111.    App.   451;  mortsage  provides  that  one  may  be 

Buck  V.  Stuben,  63  Neb.  273,  88  N.  W.  appointed  on  default  of  the   mort- 

483;   Wyckoff  v.   Scofield,   98   N.  Y.  gagor.     Degener  v.  Stiles,  6  N.  Y.  S. 

475.     In    Hazletine    v.    Granger,  44  474. 

Mich.  503,  it  was  held  tliat  the  ap-  '-^  Wallace  v.  Loomis.  97  U.  S.  146: 

pointment   would  not    be  made  ex  Burnham  v.  Bowen,  111  U.  S.  766. 
parte,  but  when  security  is  ample 
47 


T3S  REMEDIES    FOR    ENFORCEMENT    OF    LIENS,   ETC.  [§  473. 

same  or  any  part  thereof,  except  where  such  judgment,  having 
been  obtained  and  an  execution  issued,  is  legally  returned  un- 
satisfied in  whole  or  in  part,  and  it  appears  that  the  defendant 
has  no  property  to  satisfy  the  execution  except  the  mortgaged 
premises. 

The  reason  of  this  rule  is  that  in  foreclosure  cases,  as  in. 
other  equity  cases,  the  plaintifiF  must  exhaust  his  remedy  at 
law.'  It  is  therefore  a  rule  of  pleading  that  the  complainant 
is  bound  to  state  in  his  bill  of  complaint  whether  any  proceed- 
ings have  been  had  at  law  to  recover  the  debt  secured  by  the 
mortgage,  and  if  it  is  not  so  stated,  the  defendant  may  demur 
to  the  bill  for  that  cause.  But  the  complainant  may  show  by 
his  bill  that  the  judgment  at  law  has  been  recovered,  if  he 
further  shows  and  alleges  that  he  has  exhausted  his  remedy  at 
law  upon  such  judgment,  and  that  an  execution  against  the 
property  of  the  defendant  therein  has  been  returned  unsatis- 
fied.2  If  the  defendant  appears  in  the  cause  and  demurs, 
pleads  or  answers,  the  issue  thus  made  up  is  brought  on  for 
hearing  and  heard  by  the  court  the  same  as  ordinary  chancery 
causes  are  brought  to  hearing,  except  that  usually,  on  determin- 
ing that  the  plaintiff  is  entitled  to  the  decree  for  foreclosure, 
the  court  may  refer  the  cause  to  a  master  or  commissioner  to 
compute  the  amount  due  and  report  his  findings  to  the  court; 
or  the  court  may  in  its  discretion  take  proofs  in  reference 
thereto  and  grant  a  decree  if  there  is  no  appearance;  or  if  the 
defendant  is  defaulted  for  any  other  cause,  an  order  of  refer- 
ence to  compute  and  report  the  amount  due  is  usually  taken  to 
a  master  or  commissioner,  as  the  rules  and  practice  of  the 
court  provide,  and  on  the  coming  in  of  such  report,  upon  its 
acceptance  and  affirmance,  a  decree  will  be  granted.  The 
practice  in  these  particulars  is  largely  governed  by  the  stat- 
utes or  rules  that  obtain  in  the  jurisdiction  where  the  cause  is 
pending. 

§  473.  The  decree  and  order  confirming  sale. —  The  cause 
having  been  heard  by  the  court,  the  rights,  legal  and  equitable, 
of  the  respective  parties  determined,  and  the  exceptions  to  the 

iPrtttison  V.  Powers,   4  Paige  Ch.  Paige  Ch.  (N.  Y.)  648,  649;  Sea  Ins. 

(N.  Y.)  549,  551:  Dennis  v.   Heming-  Co.  v.  Day,  9  Paige  Ch.  (N.  Y.)  247; 

way.  Walk.  Ch.  (Mich.)  387.  ante,  §  467. 

2  North  River  Bank   v.   Rogers,  8 


§  473.]  EEMEDIES    FOB    ENFORCEMENT    OF    LIENS,  ETC.  739 

master's  report  upon  any  interlocutory  proceedings,  if  any, 
having  been  disposed  of,  the  court  may  make  a  final  decree. 
Generally  the  decree  should  determine  the  amount  due  upon 
the  mortgage  and  fix  the  time  when  it  must  be  paid  to  the 
complainant  with  interest  thereon,  ordering  that  in  case  the 
said  amount  of  interest  is  not  so  paid  the  mortgaged  prem- 
ises described  therein  be  sold,  or  so  much  thereof  as  may  be 
sufficient  to  realize  the  amount  found  to  be  due  the  complain- 
ant, together  with  the  costs  of  the  suit;  that  the  property  be 
sold  at  public  vendue  to  the  highest  bidder  and  fixing  the  place 
of  such  sale;  designating  the  officer  who  shall  execute  the  de- 
cree by  making  the  sale;  the  conveyance  to  the  purchaser  and 
report  of  proceedings  to  the  court;  the  kind  of  notice  of  sale 
that  must  be  given  by  the  officer,  and  how  it  shall  be  given.  If 
the  property  is  to  be  sold  in  parcels,  the  decree  should  so  state 
and  determine  the  order  in  which  the  parcels  are  to  be  sold. 
Adjudging  and  determining  that  proper  conveyance  of  the 
property  purchased  at  the  sale  shall  be  made  by  the  officer 
making  the  sale  to  the  purchaser  or  purchasers  in  the  manner 
required  by  the  statute  or  practice  of  the  court;  also  ordering 
that  the  defendant  or  defendants,  and  all  persons  claiming  by, 
through  or  under  him  or  them  since  the  commencement  of  the 
suit,  be  forever  barred  and  foreclosed  from  all  equity  of  re- 
demption and  claim  of,  in  and  to  the  said  mortgaged  premises 
or  any  part  thereof,  if  not  redeemed  according  to  law,  if  any 
redemption  is  allowed;  that  any  person  or  persons  in  posses- 
sion shall  surrender  the  same  to  the  said  purchaser,  his  repre- 
sentatives or  assigns.  The  decree  should  also  determine  and 
order  how  the  proceeds  of  the  sale  are  to  be  applied  to  the 
extinguishment  of  the  debt  and  costs;  if  the  premises  sell  for 
more  than  enough  to  pay  the  principal,  interest  and  costs,  that 
the  master  or  officer  making  the  sale  shall  bring  the  amount 
into  court  to  abide  the  further  order  thereof. 

In  jurisdictions  where  personal  judgment  or  decree  is  author- 
ized against  the  defendants  for  deficiency,  if  the  amount  real- 
ized at  the  sale  be  insufficient  to  pay  the  amount  found  due  and 
the  costs  of  the  court,  the  master  or  officer  making  the  sale  will 
be  ordered  to  specif}'^  the  amount  of  such  deficiency  in  his  re- 
port of  sale,  and  the  decree  should  provide  for  its  collection  by 
execution  according  to  the  practice  authorized  in  the  particu- 


740 


REMEDIES    FOK   ENFORCEMENT    OF    LIENS,  ETC. 


[§  473. 


]ar  jurisdiction.  The  deed  of  conveyance  by  the  officer  to  the 
purchaser  and  the  determination  as  to  deficiency  does  not  be- 
come operative  until  the  report  of  the  master  or  officer  making 
the  sale  has  been  confirmed  by  the  court.'  The  order  of  con- 
firmation is  made  upon  motion  to  the  court  based  upon  the 
report  of  the  master  or  officer  makin":  the  sale.  Notice  of  the 
hearing  of  such  motion  should  be  served,  as  required  by  the 
rules  and  practice  of  the  court,  upon  the  defendant  or  his 
solicitor,  and  may  be  opjiosed  for  any  good  reason  properly 
shown  to  the  court  at  the  hearing.^     If  it  appears  that  there 


1  Warner  v.  Cohen,  6  Gill  (Md.),  102; 
Eakin  v.  Herbert.  4  I  o'dw.  iTenn.) 
IIG.  The  authorities,  however,  are 
not  entirely  harnioiiious  In  Dema- 
ray  v.  Little  et  al.,  17  Mich.  886.  o»8, 
the  court  say:  "Until  a  sale  is  con- 
firrned.  It  is  subject  to  the  discretion- 
ary power  of  the  court  to  open  it  for 
any  sufficient  cause;  and  we  must 
assume  that  the  courts  in  chancery 
will  always  act  upon  a  proper  sense 
of  what  the  rules  of  justice  require. 
No  right  becomes  fixed  in  the  pur- 
chaser until  the  sale  becomes  abso- 
lute by  confirmation,  and  an  order, 
opening  a  sale  not  yet  confirmed,  is, 
in  no  sense,  therefore,  a  final  order, 
but  is  purely  a  question  of  practice, 
to  be  determined  by  the  court  below. 
The  distinction  has  always  been 
recognized  in  this  court  between 
those  orders  which  are  final  as  to 
rights  and  proceedings,  and  those 
which  are  not.  A  decree  is  final,  and 
may  be  appealed,  but  an  order  open- 
ing a  decree  is  held  not  final,  because 
it  remits  the  rights  of  the  parties 
to  further  decision.  So  a  confirmed 
Bale  confers  vested  rights,  and  an 
order  of  confirmation,  or  an  order 
opening  such  a  sale,  would  be  appeal- 
able because  operating  directly  on 
rights  by  fixing  or  divesting  them; 
whereas,  before  confirmation,  there 
is  no  vested  right  to  be  reached." 
Howard  v.  Bond,  42  Mich.  131 ;  Mitch- 
ell V.  Bartlett,  51  N.  Y.  447,  451.     In 


Hochgraef  v.  Hendrie,  66  Mich.  556. 
568,  the  court  say:  "The  general 
doctrine  in  this  country  is  that,  until 
the  sale  is  confirmed  by  the  court, 
the  sale  is  incomplete,  and  neither 
the  purchaser  nor  any  one  else  has 
any  right  to  regard  the  sale  as  con- 
clusive until  it  is  confirmed."  Bern- 
stein V.  Hobelman,  70  Md.  129,  16  Atl. 
374 

2  it  is  usual  to  allow  a  definite  time 
for  payment.  Laylin  v.  Knox,  41 
Mich.  40.  The  sale  must  be  made  by 
the  officer  de.signated  in  the  decrea 
In  the  federal  court,  usually  by  the 
marshal  of  the  district.  Lynde  v. 
O'Donnell,  21  How.  Pr.  (N.  Y.)  84.  In 
Heyer  v.  Deaves,  2  Johns.  Ch.  (N.  Y.) 
154,  held,  that  all  sales  must  be  made 
by  a  master  or  under  his  immediate 
direction.  To  allow  a  different  rule 
would  be  to  open  the  door  to  a  very 
lax  and  dangerous  practice.  In 
Yates  V.  Woodruff,  4  Edw.  Ch.  (N. 
Y.)  700,  701,  a  sale  made  by  another 
than  the  master  designated  in  the 
decree  was  set  aside.  In  Blossom  v. 
Railway  Co.,  3  Wall.  (U.  S.)  196,  205, 
the  court  say:  "  Sales  of  mortgaged 
premises  under  a  decree  of  foreclos- 
ure and  sale  are  usually  made  in  the 
federal  courts  by  the  marshal  of  the 
district  where  the  decree  was  en- 
tered or  by  the  master  appointed  by 
the  court,  as  directed  in  the  decree. 
Such  sales  must  be  made  by  the 
person  designated  in  the  decree,  or 


§  474.]  REMEDIES    FOR    ENFORCEMENT   OF    LIENS,  ETC.  741 

are  prior  incumbrancers,  the  decree  should  be  that  the  sale  be 
made  subject  to  such  incumbrance,^ 

§  474.  Order  of  sale  —  Inverse  order  of  alienation. —  When 
the  mortgagor  has  conveyed  portions  of  the  mortgaged  prem- 
ises at  different  times  and  by  different  conveyances  subsequent 
to  the  execution  of  the  mortgage,  the  general  rule  is  that  upon 
foreclosure  and  sale  of  the  mortgaged  property  it  shall  be 
offered  for  sale  and  sold  in  the  inverse  order  of  alienation; 
that  is,  the  portion  still  retained  and  owned  by  the  mortgagor 
must  be  first  sold,  and  if  not  sufficient  to  satisfy  the  decree, 
then  the  portion  last  conveyed  by  him,  and  so  on  to  the  first 
portion  conveyed  in  the  order  of  time  of  conveying  them.  The 
reason  for  this  equitable  rule  is  apparent.  The  rule,  it  is  said, 
"rests  chiefly,  perhaps,  upon  the  grounds  that  where  one  who 
is  bound  to  pay  a  mortgage  confers  upon  other--:  rights  in  any 
portion  of  the  property,  retaining  other  portions  himself,  it  is 
unjust  that  they  should  be  deprived  of  their  rights  so  long  as 
he  has  property  covered  by  the  mortgage  out  of  which  the 
debt  can  be  made.  In  other  words,  his  debts  should  be  paid 
out  of  his  own  estate,  instead  of  being  charged  on  the  estate 
of  his  grantees.  Any  other  rule  would  be,  in  effect,  to  enable 
him  to  enjoy  for  his  own  benefit  that  which  he  has  once  vested 
in  another,  and,  in  a  measure,  to  recall  his  own  grant."  ^ 

under  his  immediate  direction  and  Pa.  St.  (17  P.  F.  Smith\  326;  Wells  v. 

supervision,  but  he  may  employ  an  Chapman,  4  Sandf.  Ch.  312. 
auctioneer  to  conduct  the  sale  if  it  be        2  Cooper  v.  Bigly.  13  Mich.  463,  474 

made  in  his  presence."  As  to  the  suf-  In  Mason  v.  Payne,  Walk.  Ch.  (Mich.) 

ficiency  of  the  notica     Springer  v.  454.  461,  the  court  say:  "Where  a 

Law,  185  111.  542,  57  N.  E.  435;  Pear-  part  of  mortgaged  premises  has  been 

son  V.  Badger,  60  Neb.  167,  82  N.  W.  alienedby  the  mortgagor,  subsequent 

374.     As  to  sale  being  required  to  be  to  the  mortgage,  the  rule  in  equity, 

made  in  parcels.     County  Bank,  etc.  on  a  foreclosure  and  sale,  is  to  require 

V.  Goldtree,  129  Cai.  160,  61  Pac.  785;  that  part  of  the  premises  in  which 

Hiles  V.  Brooks,  105  Wis  256;  Hutch-  the  mortgagor  has  not  parted  with 

inson  v.  Yahn   (Neb.  App.,  1900),  61  his  equity  of  redemption  to  be  first 

Pac.   458;   Bozarth   v.    Largent,   128  sold;   and   then,    if  necessary,   that 

111.    95,   21   N.   E.    218;    McComb  v.  which  has  been  aliened;  and,  where 

PrentLss,  57  Mich.   225;   Vaughn  v.  the  latter  is  in  possession  of  different 

Nims.  36  Mich.  297.     This,  however,  vendees,  in  the  inverse  order  of  aiien- 

i&  regulated  by  statute.     See  Hawes  ation."    This  rule  would  not  obtain, 

V.  Detroit,  etc.  Ins.  Co.,  109  Mich.  324.  however,  if  a  parcel  first  or  early 

1  Stewart  v.  Groce,  42  S.  C.  500,  20  conveyed  should  contain  the  stipu- 

S.  E.  411;  Ashmead  v.  McCarthur,  67  lation  that  the  conveyance  was  made 


742 


REMEDIES    FOE    ENFORCEMENT   OF    LIENS,  ETC.  [§   475. 


The  rule  requiring  the  mortgaged  premises  which  have  been 
conveyed  to  be  sold  in  the  inverse  order  of  their  alienation  is 
not  always  confined  to  the  original  alienation  by  the  mortgagor 
who  is  personally  liable  for  the  payment  of  the  debt.  The 
principle  is  equally  applicable  to  several  conveyances  at  differ- 
ent times  by  the  grantee  of  the  whole  or  a  part  of  the  mort- 
gaged premises  when  he  conveys  with  warranty.'  And  "the 
principle  that  lands  consisting  of  different  parcels,  subject  to 
a  general  incumbrance,  are  in  equity  to  be  charged  in  the  in- 
verse order  of  the  alienation  of  the  several  parcels,  applies  to 
cases  where  the  owner  of  the  lands  has  given  thereon  several 
mortgages  of  different  dates."  ^ 

§475.  Redemption. —  The  real  owner  of  the  fee  is  the 
mortgagor  or  his  grantee.  The  mortgage  is  merely  a  security 
for  the  debt  and  is  a  chattel  interest.     The  equity  of  redemp- 


subject  to  the  payment  of  the  whole 
of  the  mortgage.  Ireland  v.  Wool- 
man,  15  Mich.  253,  256;  Iglehart  v. 
Crane,  43  111.  261:  Rathbone  v.  Clark, 
9  Paige  Ch.  (N.  Y.)  648;  New  York, 
etc.  Ins.  Co.  v.  Milnor,  1  Barb.  Ch. 
(N.  Y.)  353;  Hart  v.  Wandle,  50  N.  Y. 
381;  Orvis  v.  Powell,  98  U.  S.  176;  1 
Story,  Eq.  Jur.,  sec.  633. 

1  Guion  V.  Knapp,  6  Paige  Ch. 
(N.  Y.)  35,  39,  where  tlie  court  say: 
"  Thus,  if  the  mortgage  is  a  lien 
upon  two  hundred  acres  of  land,  and 
the  mortgagor  conveys  one  hundred 
acres  thereof  to  A.,  the  one  hundred 
acres  which  remains  in  the  hands  of 
the  mortgagor  is  to  be  first  charged 
with  the  payment  of  the  debt.  and. 
if  that  is  not  sufficient,  the  other  one 
hundred  acres  is  next  to  be  resorted 
to.  But  if  A.  has  subsequently  con- 
veyed one-half  of  his  one  hundred 
acres  to  B.  with  warranty,  the  fifty 
acres  remaining  in  the  hands  of  A. 
is,  in  equity,  first  chargeable  with 
the  payment  of  the  balance  of  the 
debt  which  cannot  be  raised  by  a 
sale  of  the  one  hundred  acres  that 
still  belong  to  the  mortgagor  or  his 
subsequent  grantee,  before  resort 
can  be  had  to  the  fifty  acres  which 


A.  has  conveyed  with  warranty. 
And  if  A.  conveys  his  remaining 
fifty  acres  to  C,  either  with  or  with- 
out warranty,  that  portion  of  the 
premises  is  still  liable  for  the  balance 
of  the  mortgage  debt,  and  must  first 
be  sold  before  a  resort  can  be  had  to 
the  fifty  acres  previously  conveyed 
with  warranty  to  B.  In  the  lan- 
guage of  Chancellor  Kent,  C.  sits  in 
the  seat  of  his  grantor,  and  must 
take  the  land  with  all  its  equitable 
burdens.  (5  John.  Ch.  Rep.  241.)" 
Mahagan  v.  Mead,  63  N.  H.  570. 

2  The  syllabus  in  Schryver  v.  Tel- 
ler, 9  Paige  Ch.  (N.  Y.)  173;  Hill  v. 
McCarter,  27  N.  J.  Eq.  41;  Slater  v. 
Breese,  36  Mich.  77,  99.  Where  it 
did  not  appear  that  the  property 
covered  by  a  first  and  second  mort- 
gage is  not  adequate  security  for 
both,  or  that  the  first  mortgage  is 
amply  secured  by  property  not  in- 
cluded in  the  second  mortgage,  it 
was  held  the  first  mortgagee  will 
not  be  compelled  to  first  resort  to 
property  covered  by  his  mortgage 
and  not  by  the  second  mortgage 
New  York.  etc.  Ass'n  v.  Brennan,  70 
N,  Y.  S.  916;  Monarch,  etc.  Co.  v. 
Hand,  197  IlL  288,  64  N.  E.  381. 


§  475.]  REMEDIES    FOR    ENFORCEMENT    OF    LIENS,  ETC.  743 

tion  is  an  interest  or  title  in  the  land  tantamount  to  the  fee 
It  may  therefore  be  alienated  by  deed;  may  be  incumbered 
by  mortgage;  is  subject  to  execution;  is  descendible  by  in- 
heritance and  devisable  by  will.  It  has  been  defined  to  be  "a 
right  which  the  mortgagee  of  an  estate  has  of  redeeming  it, 
aft<^r  it  has  been  forfeited  at  law  by  the  non-payment  at  the 
time  appointed  of  the  money  secured  by  the  mortgage  to  be 
paid,  by  paying  the  amount  of  the  debt,  interest  and  costs."  * 
The  right  to  redeem  was  not  recognized  by  the  common  law. 
When  the  condition  of  the  mortgage  was  broken  by  failure  to 
pay  the  debt  secured  when  due,  the  estate  of  the  mortgagee 
became  indefeasible  and  he  became  the  owner  of  the  property; 
but  equity,  applying  the  equitable  maxim,  "Equity  regards 
substance  rather  than  form,"  holding  that  at  most  the  mort- 
gage was  executed  merely  as  a  security  for  the  payment  of 
the  debt;  that  the  intention  of  the  parties  was  not  to  conve}^ 
the  title  absolutely  when  the  mortgage  ^vas  executed,  but 
simply  to  create  a  security  for  the  payment  of  the  debt,  per- 
mitted the  mortgagor,  within  a  reasonable  time,  to  redeem 
upon  payment  of  the  amount  found  to  be  due.  This  equity  of 
redemption  applies  to  every  mortgage  without  regard  to  the 
form  of  the  instrument;  that  is,  whether  it  be  in  form  a  mort- 
gage or  a  deed  of  trust,  or  an  absolute  deed  intended  as  a 
mortgage  and  given  to  secure  the  payment  of  an  indebtedness 
or  the  performance  of  an  obligation.  And  the  right  to  redeem 
cannot  be  waived  or  defeated  by  the  terras  of  the  instrument, 
or  even  by  a  contemporaneous  agreement."^ 

In  Clark  v.  Reyhurn '  the  court  say :  "  The  equity  of  redemp- 
tion is  a  distinct  estate  from  that  which  is  vested  in  the  mort- 
gagee before  or  after  condition  broken.      It  is   descendible, 

1 1  Bouvier's  Law  Diet  536.  57  111.  17;  Baker  v.  Fireman,  etc.  Ins. 

2  German  Nat  Bank  v.  Barham,  57  Co.,  79  Cal.  34,  21  Pac.  357;  Hall  v. 
Ark.  533:  Wilmerding,  etc.  Co.  v.  Arnott  80  Cal.  348:  Lynch  v.  Jack- 
Mitchell,  42  N.  J.  L.  476;  Floyer  v.  son,  28  111.  App.  160;  Campbell  v. 
Lavington,  1  PeereWms.  269;  Youle  Dearborn,  109  Mass.  130;  Hawes  v. 
V.  Richards,  1  N.  J.  Eq.  534,  23  Am,  Weedem,  180  Mass.  108;  Klinck  v. 
Dec.  722;  Jackson  v.  Lawrence,  117  Price,  4  W.  Va,  4;  Field  v.  Helms,  82 
U.  S.  679;  Wadsworth  v.  Lorenger,  Ala.  449;  Meigs  v.  McFarlan,  72 
Harr.  Ch.  (Mich.)  113;  McKinley  v.  Mich.  194;  Wallace  v.  McBride,  70 
Miller,  19  Mich.  142;  Van  Wert  v.  Mich.  596,  38  N.  W.  592;  ante,  §  460. 
Chidester,  31  Mich.  207,  209;  Snow  v.  3  8  Wall.  (U.  S.)  318,  321. 
Pressey,  82  Ma  552;  Beach  v.  Shaw, 


744  REMEDIES    FOR    ENFOKGEMENT    OF   LIENS,  ETO.  [§  475. 

devisable,  and  alienable,  like  other  interests  in  real  property. 
As  between  the  parties  to  the  mortgage,  the  law  protects  it 
with  jealous  vigilance.  It  not  only  applies  the  maxim,  'Once 
a  mortgage  always  a  mortgage,'  but  any  limitation  of  the 
right  to  redeem,  as  to  time  or  persons,  by  a  stipulation  entered 
into  when  the  mortgage  is  executed,  or  afterward,  is  held  to 
be  oppressive,  contrary  to  public  policy  and  void.  Ly  the 
common  law,  when  the  condition  of  the  mortgage  was  broken, 
the  estate  of  the  mortgagee  became  indefeasible.  At  an  early 
period  equity  interposed  and  permitted  the  mortgagor,  v^ithin 
a  reasonable  time,  to  redeem  upon  the  payment  of  the  amount 
found  to  be  due.  The  debt  was  regarded  by  the  chancellor, 
as  it  has  been  ever  since,  as  the  principal,  and  the  mortgage 
as  only  an  accessory  and  a  security.  The  doctrine  seems  to 
have  been  borrowed  from  the  civil  law.  After  the  practice 
grew  up  of  applying  to  the  chancellor  to  foreclose  the  right 
to  redeem  upon  default  in  the  payment  of  the  debt  at  matu- 
rity, it  was  always  an  incident  of  the  remedy  that  the  mort- 
gagor should  be  allowed  a  specified  time  for  the  payment  of 
the  debt.  This  was  fixed  by  the  primary  decree,  and  it  might 
be  extended  once  or  oftener,  at  the  discretion  of  the  chancel  lor, 
according  to  the  circumstances  of  the  case.  It  was  only  in  the 
event  of  final  default  that  the  foreclosure  was  made  absolute." 
This  right  or  title  is  not  enforceable  merely  by  the  mort- 
gagor, but  by  any  person  legally  claiming  under  him  by  deed, 
devise,  or  any  legal  conveyance  of  the  right.  The  equity  of 
redemption  applied  to  mortgages  is  technically  the  right  to 
redeem  from  the  lien  or  incumbrance  of  the  morto:a2:ee,  a  risrht 
or  privilege  generally  recognized  and  defined  to  be  a  property 
interest  in  the  premises  mortgaged  which  is  tantamount  to 
the  fee.  This  right  to  redeem,  therefore,  belongs  to  an}'  per- 
son who  can  legally  claim  that  property  interest,  or  any  interest 
in  it;  as  in  some  cases  judgment  creditors  who  have  liens  by 
virtue  of  their  judgments;  incumbrancers  or  persons  having  a 
legal  or  equitable  title  or  lien  thereon,  for  equity  will  allow 
such  persons  or  claimants  to  protect  their  claims  and  interests 
in  the  lands.  So  one  claiming  from  the  mortgagor  under  a 
prior  or  subsequent  conveyance  may,  as  against  the  mortgagee, 
redeem.  Equity  only  seeks  equality  of  rights.  "  Equality  is 
equity;"  this  is  the  principle  which  supports  the  right.     Xo 


§g  476,  477.]       REMEDIES    FOR    ENFOKCEME^'T    OF    LIENS,  ETC.        745 

one  suirers  loss  if  the  property  in  question  furnishes  sufficient 
security  to  prevent  it.  lie  who  has  obtained  the  first  and 
paramount  right  shall  have  it,  but  no  more.  When  his  claim 
is  satisfied  he  must  be  satisfied,  and  will  not  be  allowed  to 
impair  or  disturb  the  securities  or  titles  which  are  subject 
to  his  securities.  So  the  subsequent  mortgagee  may  tender 
payment  to  the  owner  of  the  prior  mortgage  when  due,  and 
be  subrogated  to  all  his  rights  and  privileges  if  he  desires, 
and  he  in  turn  be  subject  to  the  same  proceeding  by  those 
coming  after  him.  The  owner  of  the  premises,  or  his  grantees, 
may  always  redeem  from  incumbrancers  when  due  and  pay- 
able and  the  right  to  redeem  is  not  foreclosed.^ 

§  476.  Eedes!ij)tiou  of  entire  mortgage  and  not  of  part. — 
The  redemption  must  be  of  the  entire  mortgage  debt  and  not 
a  part  or  portion,  and  so  one  who  owns,  by  conveyance  from 
the  mortgagor  or  his  grantees,  a  part  of  the  premises  mort- 
gaged cannot  redeem  as  to  that  part  by  paying  a  proportion- 
ate amount  of  the  mortgage  debt.  The  mortgagee  is  entitled 
to  his  security  upon  the  entire  premises  until  the  entire  in- 
debtedness is  paid  and  discharged,  and  he  cannot  be  compelled 
to  apportion  it.^  Nor  can  the  mortgagee  require  a  greater 
or  other  amount  to  be  paid  upon  the  redemption  of  the  mort- 
gage than  the  debt  secured  and  due  upon  his  mortgage.^  But 
it  has  been  held  that  one  must  pay  the  mortgage  debt  if  he 
would  redeem  from  the  mortgage,  even  if  the  statute  of  limita- 
tions has  run  against  it.* 

§  477.  The  bill  to  redeeiii. —  In  many  of  the  states  this  pro- 
cedure Is  statutory  and  not  confined  to  the  equity  court;  but 

1  As  to  who  can  redeem.    Powers  any  lien  or  charge  upon  it,  that  he 

V.  Golden  Lumber  Co.,  43  Mich.  468;  could  not  maintain  a  bill  to  redeem. 

Smith  V.  Austin,  9  Mich.  465;  Grant  And    see  authorities  cited  on  page 

V.  Duane,  9  Johns.  (N.  Y.)  611;  Cham-  431. 

berlain   v.    Chamberlain,   44   N.    Y.  2  Robinson  v.  Fife,  3  Ohio  St  551; 

Sup.   Ct.    116;    Piatt    v.   Squire,    18  Buettel  v.  Harmount,  46  Minn.  481; 

Mete.    (Mass.)   494;    Lamb    v.    Mon-  Gleason  v.  Kinney's  Adm'r.  65  Vt. 

tague,  112   Mass.  352;  Whitcomb  v.  560.   565,   27   Atl.   208;   McQueen    v. 

Sutherland,  18  111.  578.     Mortgagee  Whetstone,  127  Ala.  417,  30  So.  548. 

may    redeem,    when.      Dawson      v.  3 "Weller  v.  Summers,  82  Minn.  307, 

Overmyer,  141   lud.  438;   Smith    v.  84  N.  W,  1022;  Fellows  v.  Fellows,  69 

Shay,  62  Iowa.  119.     In  Harwood  v.  N.  H.  --i'Sd.  46  Atl.  474. 

Underwood,  28  Mich.  4-28,  held,  where  *  Oak  man  v.  Walker,  69  Vt.  344,  88 

it  appeared  that  one  had  no  legal  or  Atl.  63;  Kerse  v.  Miller,  169  Mass.  44; 

equitable  right  in  the  property  nor  Evans  v.  Trast  Co.,  67  Minn.  160. 


746  KEMEDIES    FOR    ENFORCEMENT   OF    LIENS,  ETC.  T^  *'J^7 

the  right  of  redeemption  seems  to  be  one  especially  enforceable 
in  equity,  and  unless  there  is  express  legislative  enactments  tc 
the  contrary,  it  will  be  enforced  by  the  equity  courts  inde- 
pendent of  statutory  procedure.^  The  bill  of  complaint  must 
allege  the  existence  of  the  mortgage  and  the  interest  of  the 
complainant  therein  that  it  may  appear  that  the  complainant 
is  the  owner  of  the  equity  of  redemption.  The  complainant 
must  show  by  the  bill  that  he  has  such  an  interest  as  will  sup- 
port his  right  to  file  the  bill.  lie  cannot,  however,  allege  and 
try  issues  involving  the  validity  of  the  mortgage  or  the  man 
ner  of  obtaining  it,  or  any  facts  that  he  might  have  introduced 
by  way  of  a  defense  to  the  foreclosure  action,  if  he  was  regu- 
larly served  with  process  therein  and  had  an  opportunity  to 
make  his  defense.  A  party  cannot  in  a  bill  to  redeem  merely 
review  a  foreclosure  suit  which  has  been  tried  and  determined, 
for  the  case  involved  in  that  suit,  if  the  parties  have  had  the 
opportunity  to  be  heard,  becomes  res  adjudicata.'^ 

The  facts  alleged  in  the  complaint  must  be  original  and  of 
such  a  nature  as  to  give  to  the  complainant  the  right  to  a  con- 
sideration by  the  court.  As  where  fraud  is  alleged  on  the  part 
of  a  trustee,  in  a  foreclosure  sale  of  a  trust  deed,  in  so  conduct- 
ing the  sale  and  influencing  the  bids  as  to  induce  the  owner  to 
execute  a  quitclaim  deed  of  the  property;'  or  where  the  com- 
plainant is  an  interested  party  in  the  equity  of  redemption ;  as  a 
junior  mortgagee,  a  subsequent  judgment  creditor  or  grantee  of 
the  mortgagor  and  who  was  not  made  a  party  to  the  foreclosure 
proceedings;  *  or  where  fraud  in  the  foreclosure  or  sale  of  the 
property  is  relied  upon,  or  some  unforeseen  event  has  prevented 
the  mortgagor  from  paying  the  mortgage;  or  where  the  power 
of  sale  in  the  mortgage  has  been  unfairly,  irregularly,  oppress- 
ively or  fraudulently  exercised;  or  where  the  mortgagee  is 
prevented  by  the  fraud  of  the  purchaser  from  paying  off  the 
mortgage;  facts  which  entitle  the  complainant  to  bring  the 
action  to  the  attention  of  the  equity  court,  give  the  court  juris- 
diction to  entertain  a  bill  to  redeem.     Fraud,  accident  or  mis- 

1  American,  etc.  Co.  v.  Burlington,     707;  Sanger  v.  Nightingale,  122  U.  S. 
etc.  Ass'n,  61  Io«a,  464;  Spurgin  v.     176. 

Adamson,  63  Iowa,  661;  Hall  V.  Hall,        3  Williamson     v.    Stone,    128     111. 
46  N.  H.  340.  129. 

2  Ruff  V.  Doty,  26  S.  C.  73,  1  S.  E.        *  Johnson  v.  Hosford,  110  Ind.  572. 


§  477. J  REMEDIES    FOR    ENFORCEMENT    OF    LIENS,  ETC. 


747 


take  are  in  this  case,  as  in  all  equity  cases,  underlying  principles 
sustaining  the  jurisdiction  of  the  court  to  try  and  determine 
the  cause.^ 

The  complainant  who  seeks  the  aid  of  the  court  in  allowing 


1  In  Bostwick  v.  Stiles,  35  Conn. 
195. 198,  where  a  mortgaj^or  depended 
U[)on  one  to  furnish  money  to  pay 
oflf  the  amount  due  and  prevent  a 
mortj2;age  sale  of  his  property,  but 
without  his  fault  was  disappointed 
at  the  last  moment  and  all  his  prop- 
erty, worth  twice  the  amount  of  the 
mortgage,  was  sold  on  foreclosure, 
the  court  allowed  a  bill  to  redeem. 
The  court  say:  "We  have  had  this 
case  under  advisement  for  a  consid- 
erable length  of  time,  and  have 
thoroughly  considered  the  several 
questions  involved,  and  on  the  whole 
we  have  come  to  the  conclusion  that 
the  court  ought  to  interfere  in  be- 
half of  the  petitioner,  and  allow  him 
another  opportunity  to  redeem  the 
premises.  It  is  tiie  peculiar  province 
of  a  court  of  equity  to  grant  relief 
in  cases  of  fraud,  accident  or  mis- 
take, where  there  has  been  no  fault 
on  the  part  of  the  party  seeking  re- 
lief. Bridgeport  Savings  Bank  v. 
Eldredge,  28  Conn.  556;  1  Story,  Eq. 
Jur.,  sec.  489.  The  equitable  defini- 
tion of  the  term  'accident'  includes 
not  only  inevitable  casualties,  and 
such  as  are  caused  by  the  act  of  God, 
but  also  those  that  arise  from  unfore- 
seen occurrences,  misfortunes,  losses, 
and  acts  or  omissions  of  other  per- 
sons, without  the  fault,  negligence 
or  misconduct  of  the  party.  1  Story, 
Eq.  Jur.,  sec.  78.  Relief  on  the 
gfDund  of  accident  is  limited  to  obli- 
gations imposed  by  law,  and  does  not 
apply  to  contracts  voluntarily  en- 
tered into  by  the  parties.  In  relation 
to  the  latter,  no  relief  can  be  granted 
for  their  non-fulfillment  on  the 
ground  of  accident,  for  the  risk  was 
voluntarily  assumed.  1  Story,  Eq. 
Jur.,  sec.  101.     It  is  found  as  a  fact  in 


the  case  that  the  petitioner  intended 
and  expected  to  redeem  the  premises, 
and  never  entertained  the  thought 
of  allowing  the  time  limited  by  the 
court  for  redemption  to  expire  with- 
out meeting  the  payment.  But  he 
had  but  little  property  besides  the 
mortgaged  premises,  and  had  to  re- 
sort to  his  friends  to  assist  him  to 
the  necessary  funds  for  the  purpose. 
The  amount  to  be  raised  was  a  large 
sum  for  a  man  in  his  pecuniary  cir- 
cumstances, and,  considei-ing  the 
great  disparity  between  the  mort- 
gage debt  and  the  value  of  the  mort 
gaged  property,  it  would  be  strange, 
indeed,  if  he  neglected  to  exercise  the 
utmost  diligence  to  make  sure  of 
the  necessary  funds  in  time  for  the 
payment.  He  had  more  than  eighc 
thousand  dollars'  worth  of  property 
mortgaged  for  a  sum  less  than  four 
thousand,  and  that  property  was 
nearly  all  he  owned.  Negligence 
under  such  circumstances  would 
seem  to  be  almost  impossible.  He 
knew  that  he  must  comply  with  the 
decree  of  the  court  or  lose  his  prop- 
erty, and  we  should  expect  that  he 
would  not  rest  either  day  or  night 
till  he  had  secured  the  necessary 
funds  to  be  fortiicoming  at  the  time 
appointed.  The  case  finds  in  effect 
that  this  was  true.  He  applied  to 
his  uncle,  a  gentleman  of  ample  prop- 
erty, for  the  necessary  amount,  and 
was  promised  that  he  should  have  it 
on  Saturday,  the  third  day  of  Au- 
gust. The  time  limited  for  redemp- 
tion expired  on  Monday,  the  fifth 
day  of  August.  The  case  finds  that 
the  petitioner  had  good  reasons  to 
suppose  that  the  money  would  be 
furnished  in  accordance  with  the 
agreement;  but  for  some  reason,  not 


7i8 


REMEDIES    FOR    ENFORCEMENT    OF    LIENS,   ETO. 


[§  47T. 


him  to  redeem  his  property  from  the  lien  or  incumbrance  is 
subject  to  that  equity  maxim  which  always  makes  its  demands 
of  persons  praying  for  relief  in  equity:  "He  who  seeks  equity 
must  do  equity."  And  so  the  complainant,  before  he  can  be 
allowed  to  invoke  the  power  of  the  court,  must  at  least  offer 
to  pay  the  amount  due  upon  the  mortgage  or  lien  from  which 

fully  explained,  he  was  wholly  dis-  result  in  a  failure  to  pay  as  the  deoree 
appointed.  .  .  .  The  question  is,  requires,  how  can  it  be  said  that  a 
whether  these  facts  are  sutficient  to    party  h;is  been  guilty  of  negligence? 


show  that  the  failure  to  pay  the  re- 
spondent on  the  fifth  day  of  August 
was  occasioned  by  accident,  without 
any  fault  or  negligence  on  the  part 
of  the  petitioner.  If  the  petitioner 
had  collected  the  amount,  and  had 
it  in  his  house  to  pay  the  respondent 
on  tiiat  day,  but  on  the  night  previ- 
ous his  dwelling  had  taken  fii-e,  and 
the  money  had  been  consumed,  no 
one  would  doubt  that  the  noi)-pay- 
ment  was  the  result  of  accident  If 
the  petitioner  had  made  ari'ange- 
ments  with  a  bank,  and  they  had 
agreed  to  furnish  the  money  on  cer- 
tain security,  and  the  security  had 
been  given,  but  owing  to  some  sud- 
den and  unexpected  revulsion  in 
financial  affairs  they  had  refused  to 
fulfill  their  agreement  at  the  last 
hour,  could  there  be  any  doubt  that 
the  failure  to  pay  according  to  the 
decree  was  owing  to  accident? 
Wherein  does  this  case  differ  in  prin- 
ciple ?  The  uncle  of  the  petitioner 
was  both  able  and  willing  to  furnish 
the  money.  He  had  agreed  to  do  so, 
and  looking  at  possibilities  in  rela- 
tion to  future  events,  it  was  as  morally 
certain  that  the  money  would  be 
furnished  in  the  case  of  the  uncle  as 
in  the  case  of  the  bank.  There  is  a 
degree  of  uncertainty  in  regard  to  all 
expectations,  and  no  more  ought  to 
be  required  in  relation  to  future  obli- 
gations imposed  by  law,  than  that 
such  measures  shall  be  taken  to  ful- 


Even  in  actions  at  law  no  greater 
degree  of  care  is  required  to  avoid 
injuries  to  others  while  in  the  per- 
formance of  lawful  acts,  and  if  dam- 
ages result  they  are  regarled  as 
occasioned  by  inevitable  accidents. 
Applying  this  rule  and  considering 
the  case  at  the  time  the  promise  was 
made,  was  there  any  reasonable 
doubt  that  would  suggest  itself  to  a 
man  of  prudence  and  sagacity  that 
the  money  might  not  be  furnisiiedr 
.  .  .  We  think,  therefore,  that  the 
petitioner  was  prevented  from  pay- 
ing the  respondent  the  amount  of 
his  claim  on  the  third  day  of  August 
as  he  had  intended,  by  the  happen- 
ing of  some  unforeseen  event  over 
which  the  petitioner  had  no  control, 
and  that  he  was  consequently  free 
from  fault.  .  .  .  This  conduct  of 
the  respondent  does  not  entitle  him 
to  favor  in  a  court  of  equity,  and  on 
the  whole  we  are  of  the  opinion  that 
the  prayer  of  the  petition  should  be 
granted,  and  so  we  advise  the  su- 
perior court."  Newman  v.  LocKe, 
66  Mich.  27;  Wilson  v.  Eggleston,  ~^7 
Mich.  2")7,  259.  In  Penny  v.  Cook.  19 
Iowa,  538,  543,  wiiere  the  sale  was 
made  under  a  power  in  the  deed,  it 
was  said:  "This  harsh  and  summary 
mode  of  disposing  of  the  equity  of 
redemption  is  jealously  watched  by 
the  courts,  and  when  the  power  has 
been  fraudulently,  or  oppressively, 
and  unfairly,  or  irregularly  exercised. 


fill  them  as  will  render  it  reasonably  the  owner  will  be  allowed  to  come 

certain,  so  far  as  human  sagacity  can  in  and  impugn  the  sale  and  redeem 

foresee,  that  they  will  be  performed.  tiie  property,  especially  where  the 

If  such  measures  are  taken  and  they  application  is  not  stale,  and  the  prop- 


§  477.J  REMEDIES    FOR    ENFORCEMENT    OF    LIENS,   ETC. 


749 


he  would  be  relieved;  that  is  to  say,  he  must  tender  perform- 
ance of  the  obligation  to  pay  the  amount  of  the  lien  or  in- 
cumbrance upon  his  property  in  his  bill  of  complaint  by  averring 
a  readiness  and  v^^illingness  to  pay  the  amount.  There  are 
cases  which  hold  that  a  tender  of  the  amount  due  must  be 
actually  made  prior  to  the  filing  of  the  bill  to  the  party  own- 
ing the  obligation,  and  that  the  bill  must  allege  that  fact  un- 
less a  valid  reason  is  jjfiven  for  not  doin";  so.  But  the  weight 
of  authority  seems  to  be  that  it  is  not  necessary  to  do  more 
than  to  allege  in  the  bill  a  readiness  and  willingness  to  pay.' 
The  authorities,  however,  are  not  entirely  harmonious  upon 
this  question,  and  in  some  jurisdictions  it  is  held  that  an  alle- 
gation of  previous  tender  is  necessary  unless  there  is  some  suf- 
ficient excuse  for  not  doinij  so.^ 


erty  has  not  passed  into  the  hands  of 
bona  fide  purchasers."  2  Am.  Law 
Reg.  (N.  S.)  726. 

iHaminett  v.  White,  128  Ala.  380, 
29  So.  547.  In  Lumsden  v.  Manson, 
96  Me.  857.  52  Atl.  783,  it  was  held 
that  the  bill  could  not  be  sustained 
without  a  previous  tender  of  per- 
formance or  proof  of  facts  which 
would  excuse  the  omission  of  such  a 
tender.  Citizens',  etc  Co.  v.  Strauss 
(Tex.  Civ.  App..  1902),  69  S.  W.  86; 
Lamson  v.  Drake,  105  Mass.  564; 
Dwen  V.  Blake.  44  111.  135;  Barnard 
V.  Cushman,  35  111.  451;  Taylor  v. 
Dillenburg,  168  111.  285.  In  Casserly 
V.  Witlierbee,  119  N.  Y.  523,  528,  the 
necessity  of  an  actual  tender,  or  ten- 
der in  the  bill  of  complaint,  was  held 
to  be  unnecessary.  The  court  say: 
"There  are,  undoubtedly,  authorities 
laying  down  the  rule  in  general 
terms,  that  before  an  action  to  re- 
deem from  a  mortgage  can  be  main- 
tained, the  mortgagor  must  eitiier 
tender  the  amount  due  upon  the 
mortgage,  or  offer  to  pay  the  amount 
in  his  complaint.  But  it  has  never 
been  so  decided  in  this  court,  and 
we  think  it  is  now  the  settled  law  in 
this  state,  under  our  present  system 
of  pleadings,  that  the  allegation  of 
«ucli  a  tendir  or  offer  is  unnecessarv. 


It  certainly  is  not  necessary  to  allege 
that  a  tender  or  offer  to  pay  the 
amount  due  upon  tlie  mortgage  was 
made  before  the  commenc  ement  of 
the  action;  and  an  offer  in  the  com- 
plaint is  at  most  a  technical  matter, 
serving  no  substantial  purpose,  be- 
cause in  the  judgment  given  in  such 
an  action  the  court  always  provides 
that  redemption  can  be  had  upon 
payment  of  the  amount  due.  The 
tender  and  offer  are  important  only, 
as  tliey  have  bearing  upon  the  ques- 
tion of  costs.  The  mortgagor's  right 
of  redemption  does  not  depend  upon 
his  offjr  or  tender  of  paj'ment  It 
exists  independently  thereof,  and 
antecedently  thereto.  The  tender 
or  offer  is  not  needed  to  put  the 
mortgagee  in  default,  and,  if  made, 
no  relief  can  be  based  thereon,  as  the 
rights  of  the  parties  are  not  changed 
thereby,  and  independently  thereof 
are  always  taken  care  of  and  regu- 
lated in  the  judgment"  Quin  v. 
Brittain,  Hoff.  Ch.  (N.  Y.)  353.  In 
Kopper  V.  Dyer,  59  Vt.  477,  9  Atl.  4, 
it  was  held  that  a  bill  in  equity  to 
redeem  after  foreclosure  which 
neither  offers  nor  avers  a  willingness 
to  pay  is  not  sufficient. 

-'In  Way  v.  Mullett.  143  Mass.  49. 
54,   it   was  held   that  a   mortgagnr 


750  KEMEDIES    FOE    ENFORCEMENT    OF    LIENS,  ETC.  [§  478. 

§  478.  Parties  to  a  bill  to  redeem.—  Generally  it  may  be 
said  that  all  interested  parties,  as  subsequent  mortgagees,  sul> 
sequent  judgment  creditors-,  subsequent  grantees  of  the  mort- 
gagor who  have  been  made  parties  to  the  foreclosure  bill,  may 
redeem  from  the  foreclosure,  for  the  court  of  equity  will  allow 
them  the  privileges  and  rights  afforded  a  party  in  the  foreclos- 
ure proceedings.  And  as  important  as  this  is  the  necessity  of 
having  all  the  interests  before  the  court,  that  by  its  decree  they 
may  be  determined,  foreclosed  and  extinguished;  otherwise  the 
purchaser  at  the  sale  cannot  procure  a  complete  title  to  the 
premises,  for  such  persons  have  the  right  to  redeem. 

(1)  Com2)laina7its.  Where  the  bill  is  filed  by  a  mortgagor 
against  the  mortgagee  and  there  has  been  no  assignment  or 
alienation  of  title  upon  either  side,  no  other  persons  need  be 
made  parties.  In  case  of  the  death  of  the  mortgagor,  his  heirs 
or  devisees  are  proper  parties  to  redeem  if  the  mortgage  be 
upon  realty.  But  if  the  mortgage  be  upon  personalty,  then 
the  personal  representatives  of  the  deceased  would  be  the 
proper  parties,  Or  if  the  equity  of  redemption  be  vested  in 
two  different  estates  or  in  different  persons,  all  of  these  per- 
sons must  be  made  parties  to  a  bill  to  redeem.     Naturally  they 

might,  before  sale  of  the  premises,  man  v.  McKernan,  50  Ind.  441.    .    .    . 

file  a  bill  in  equity  to  redeem  the  In  cases  of  this  kind  where  the  court 

land  from  mortgage  without  making  can    decree    the    amount    due  and 

a  previous  tender  or  offering  in  the  make  a  lien  on  the  land,  it  is  not 

bill    to   pay    the    amount    due     In  necessary  to  make  a  tender  before 

Coombs  V.  Carr.  55  Ind.  303,  309,  the  the  commencement  of  the  suit  nor 

court  quote  approvingly  the  follow-  bring  the   money   into  court;   it  is 

ing    language:     "The    holder    of  a  sufficient  to   make  the  offer  in  the 

junior  mortgage  who  has  foreclosed  pleading  to  pay  the  amount  when  it 

his  mortgage  in  a  suit  without  rank-  is  ascertained."    See  cases  cited  in 

ing  a  senior  mortgagee  a  party,  and  the    opinion.     In    Brown    v.   South 

who  has  bought  in  the   mortgaged  Boston,  etc.  Bank,  148  Mass.  300,  19 

premises  at  a  slieritf' s  sale  on  the  de-  N.  E.  382,  it  was  held  that  it  was 

cree,  has  a  right  to  redeem  the  mort-  sufficient  where   the  bill  in  equity 

gaged    premises     from     tlie    senior  offers  to  redeem  by  praymg  that  the 

mortgagee,  though  the  senior  mort-  complamant  may  be  allowed  to  pay 

gagee   may    have    previously    fore-  such  sum  as  shall  be  found  due  on 

closed  his  mortgage  witiiout  making  the  mortgage,  and  that  it  was  not 

the  holder  of  the  junior  mortgage  a  necessary  that  he  should  offer  to  pay 

party  to  the  action,  and  though  the  in  such  distinct  terms  as  if  accepted 

premises  may  have  be'-n  sold  by  the  would  constitute  an  enforcible  con- 

sheritf  on  the  decree  and  bought  in  tract, 
by  the  senior    mortgagee.     Hessel- 


§  478.]  KEMEDIES    FOR    ENFOKCEMENT    OF   LIENS,  ETC.  Tol 

should  be  complainants,  but  if  any  should  refuse  to  join  the 
comphiinant  in  a  bill  to  redeem  they  may  be  made  defendants. 
If  there  have  been  payments  made  by  the  mortgacror  in  his  life- 
time, and  the  bill,  as  it  should,  seeks  an  accounting,  the  mort- 
o-acror  should  be  made  a  party  even  though  the  bill  is  brought 
by\  subsequent  purchaser;  and  in  case  of  the  death  of  the 
mortgagor,  then  his  personal  representatives  as  well  as  his  heirs 
and  devisees  should  be  made  parties  to  the  bill.     If  the  mort- 
gacror has  aliened  the  premises  subject  to  the  mortgage,  it 
wo"uld  not  be  necessary,  except  for  the  purpose  of  an  accounting 
where  he  had  made  payments  upon  the  mortgage,  to  make 
him  a  party,  or  his  heirs  or  devisees  parties  to  a  bill  to  redeem; 
but  if  he  conveyed  the  premises  subsequent  to  the  mortgage, 
covenanting  that  they  were  free  from  incumbrance,  then  the 
morto-agor  should  be  made  a  party  in  order  that  he  may  be 
bound   by  the  decree  and  to  assist  in  the  accounting,  for  in 
such  case  he  would  be  primarily  liable  to  the  purchaser  upon 
his  covenant;  and  if  the  conveyance  be  to  several  purchasers 
they  should  all  be  made  parties  to  the  bill. 

It  has  been  said:  "To  a  bill  brought  by  a  second  or  subse- 
quent mortcra^ee,  to  redeem  either  one  or  all  of  the  antecedent 
mortcni-es,Ve  mortgagor  or  his  heir,  or  other  proper  repre- 
sentativx  in  the  realty,  is  a  necessary  party;  for  it  is  said  the 
natural  decree  in  such  a  case  is  that  the  second  mortgagee 
shall  redeem  the  first  mortgagee,  and  the  mortgagor,  or  his 
representative  in  the  realty,  shall  redeem  him  or  stand  fore- 
closed And  a  court  of  equity  in  such  a  case  endeavors  to 
make  a  complete  decree  that  shall  embrace  the  whole  subject 
and  determine  upon  the  rights  of  all  the  parties  interested  in 
the  estate.  But  in  such  a  case  it  seems  that  the  personal  rep- 
resentative of  the  mortgagor  would  not  be  a  necessary  party, 
even  though  it  might,  perhaps,  be  competent  to  make  him  a 

party."^ 

The  right  to  become  party  complainant  to  the  bill  follows 
the  title  to  the  property  mortgaged,  or  the  equity  of  redemp- 
tion or  an  interest  in  it;  and  so  where  the  mortgagor,  or  the 
owner  of  the  property,  conveys  his  title  to  the  property  to  a 
trustee  for  the  benefit  of  his  creditors,  the  trustee  in  such  case 

12  Barb.  Cb.  Pr.  196, 197;  Story,  Eq.  PL,  sea  173. 


752 


REMEDIES    FOR    ENFORCEMENT   OF    L1EN8,  ETC.  [§  478. 


would  be  entitled  to  file  a  bill  to  redeem  and  not  the  creditors. 
But  if  for  anj  reason  the  trustee  should  refuse  to  file  the  bill, 
or  should,  because  of  fraudulent  collusion  with  the  mortgagee, 
render  himself  incompetent  to  become  a  party  complainant, 
then  the  creditors  for  whose  benefit  property  was  conveyed  or 
assigned  may  bring  the  action." 

(2)  Defendants.  As  a  general  rule  the  ownership  of  the 
mortgage  determines  who  should  be  parties  defendant  in  a 
bill  to  redeem.  If  the  mortgage  is  owned  by  the  mortgagee 
and  has  not  been  assigned  or  transferred,  then  the  morto-aoee 
is  the  proper  party  defendant.  If  the  mortgage  be  upon  realty, 
it  conveys  an  interest  in  real  estate  subject  to  the  defeasance 
clause,  and,  in  case  of  the  death  of  the  mortofaofee,  his  heirs  or 
devisees  should  be  made  parties;  and  because  of  the  interest  of 
the  personal  representatives,  the  amount  of  the  mortgage,  if 
paid,  going  to  his  personal  estate,  thej'  should  be  made  parties 
also.     If  the  mortgage  be  of  personalty,  the  personal  repre- 

1  In  McQueen  v.  Whetstone,  127 
Ala.  417,  oO  So.  548,  where  the  equity 
of  redemption  is  owned  by  several 
as  joint  tenants  or  tenants  in  com- 
mon, it  was  held  that  any  one  of 
them  might  redeem  the  whole  prop- 
erty, but  no  one  could  redeem  his 
moiety  without  redeeming  the  whole. 
Brewer  v.  Conger,  27  Ont  App.  10; 
Morse  v.  Trust  Co.,  184  III.  255. 
"Where  a  grantee  of  the  mortgagor 
permitted  to  redeem  after  foreclos- 
ure sale  under  power  in  the  mort- 
gage. Houston  V.  National,  etc. 
Ass'n,  80  Miss.  31,  35  So.  540.  And 
where  the  complainant  was  found  by 
the  court  to  be  simply  an  unsecured 
creditor  not  allowed  to  redeem.  Na- 
tional Foundrj'  and  Pipe  Works  v. 
Oconto,  etc.  Co.,  51  C.  C.  A.  465,  113 
Fed.  793.  In  Sandford  v.  Flint,  24 
Mich.  26,30,  the  court  say:  "Relief 
against  forfeitures  is  a  very  ancient 
head  of  equity,  and  it  is  founded 
upon  the  bi-oad  and  benign  principle 
that  the  possessor  of  a  legal  right 
shall  not  be  allowed  to  use  it  to  work 
oppression  or  injustice.  Many  have 
supposed  that  the    remedy  for  re- 


demption was  originally  a  shoot  from 
the  same  root,  and  whetlier  this  is  so 
or  not.  it  is  certain  that  it  is  mainly 
invigorated  from  the  same  source. 
If  the  complainant  has  brought  iiim 
self  within  the  influence  of  this 
equity,  if  he  lias  stated  and  proved 
a  case  which  entitles  hmi  on  the 
principle  suggested  to  save  the  mort- 
gaged estate  without  injustice  to 
others,  then  it  becomes  the  duty  of 
the  court  to  administer  the  proper 
relief."  Smith  v.  Austm,  11  Mich. 
34;  Millard  v.  Truax.  50  Mich.  343; 
Sager  v.  Tapper.  35  Midi.  1.34;  Bige- 
low  V.  Booth,  39  Mich.  622;  Lamb  v. 
Jeffrey,  47  Mich.  28;  Allen  v.  Swoope, 
64  Ark.  576,  44  S.  W.  78;  Beadle  v. 
Cole.  173  III.  186,  50  N.  E.  809;  Heller 
V.  King,  54  Neb.  22,  74  N.  W.  423. 
Where  the  interest  of  a  legatee  was 
limited  to  one-tenth  of  the  proceed- 
ings of  the  sale  of  the  estate  in  re- 
mainder after  the  expiration  of  a  life 
estate  and  payment  of  the  mortgage- 
debt,  it  was  held  that  it  was  not  such 
an  interest  as  entitled  him  to  redeem 
against  the  mortk^age.  Snook  v. 
Zentmyer,  91  Md.  485,  46  Atl.  1U08. 


§  479.]  REMEDIES    FOR    ENFORCEMENT    OF    LIENS,  ETC.  753 

sentatives,  in  case  of  the  death  of  the  mortgagee,  are  the  only- 
proper  parties.  But  where  the  mortgage  has  been  assii^ned 
and  the  mortgagee  has  no  interest  in  it,  it  is  not  necessary  to 
make  any  person  but  the  last  assignee  a  party  to  the  bill,  for 
he  stands  as  the  representative  of  the  mortgagee  an<i  all  other 
mesne  assignees.  There  may,  however,  be  exceptions  to  this 
rule;  where,  for  example,  the  mortgagor  seeks  an  accounting 
for  rents  and  profits  or  other  sums  received  by  the  mortgagee 
and  subsequent  assignees  before  the  final  assignment.  In  such 
case  the  mortgagee  and  such  a^^signees  as  it  is  claimed  have 
received  rents  or  profits  to  be  accounted  for  should  be  made 
parties  defendant  to  the  bill  to  redeem  as  well  as  the  assig,nee, 
for  they  are  necessary  parties  to  the  accounting.^ 

Tf  the  mortgagee  has  retained  an  interest  in  the  mortgage, 
he  sh  )ald  be  made  a  party  defendant  as  well  as  his  assignee  of 
a  portion  of  it.  So  "  where  there  are  successive  mortgages,  the 
second  embracing  a  part  only  of  the  estates  comprehended  in 
the  first,  if  the  second  mortgagee  files  a  bill  to  redeem  the 
first  mortgagee,  and  the  equity  of  redemption  of  the  mortgagor 
in  the  different  estates  has  become  vested  in  different  persons, 
all  of  them  should  be  made  parties  to  the  bill,  for  they  are  all 
interested  in  taking  the  account."^ 

§  479.  The  prayer  of  the  bill. —  A  bill  to  redeem  is  usually 
filed  as  well  for  an  accounting  as  to  obtain  the  privilege  of  re- 
deeming from  the  lien  or  incumbrance;  an  accounting  to  de- 
termine the  amount  of  payments,  if  any,  or  the  credits  that 
should  be  allowed  the  mortgagor  for  rents  and  profits  when 
involved;  as  where  the  property  was  given  over  into  the 
hands  of  a  receiver  and  afforded  an  income  which  was  col- 
lected by  the  receiver  and  paid  over  to  the  mortgagee  by  order 
of  the  court  in  the  foreclosure  proceedings;  or  where  the 
property  for  any  reason  was  in  the  possession  and  under  the 
control  of  the  mortgagee,  as  in  case  of  foreclosure  and  sale  of 
the  mortgaged  property.  So,  generally,  the  prayer  of  the  bill 
is  for  an  accounting  to  the  extent  of  determining  the  amount 
due  upon  the  mortgage,  and  that  upon  the  payment  by  the 
complainant  of  the  amount  found  remaining  due  to  the  de- 

»Lowtlier  v.  Carlton.  2  Atk.  139;  ton.  12  Ves.  48:  Lennon  v.  Porter,  2 

Hill  V.  Adams,  2  Atk.  39.  Gray  (Mas&),  473;  Story,  Eq.  PL,  sec. 

2  2  Barb.  Ch.  Pr.  198;  Palk  v.  Clin-  190. 

iS 


754 


KEMEDIES    FOR   ENFORCEMENT    OF    LIENS,  ETC.  [§  480. 


fendant  upon  the  principal  and  interest,  he  may  be  decreed  to 
surrender  and  deliver  up  the  possession  of  the  mortgaged 
premises  to  the  complamant  and  compelled  to  release  the 
mortgaged  incumbrance  or  lien  upon  the  reconis  if  it  be  re- 
corded, following  this  special  prayer  with  the  general  prayer 
for  relief,  that  the  complainant  may  have  such  other  and 
further  relief  as  equity  may  require  and  to  the  court  may 
seem  meet.  It  is  also  usual  in  the  prayer  for  relief  to  offer  to 
pay  the  amount  found  due  upon  the  accounting.' 

§  480.  The  decree. —  Upon  the  hearing  of  the  cause  the 
court  determines  whether  the  complainant  shall  be  permitted 
to  redeem;  and  if  redemption  is  allowed  the  decree  will  gen- 
erally direct  a  reference  to  a  master  in  chancery  to  ascertain 


^Tlie  following  form  has  been  ap- 
proved: "The  plaintiff  demands  that 
an  account  may  be  taken  of  what,  if 
an\  tiling,  is  due  to  the  said  defend- 
ant, for  principal  and  interest  on 
said  niortgKge;  and  that  an  account 
may  also  be  taken  of  the  rents  and 
proHts  of  the  said  mortgaged  prera- 
ise.s  which  have  been  possessed  or  re- 
ceived by  the  said  defendant  or  by 
his  order,  or  for  his  u.se,  or  which, 
witliout  i)is  wilful  defaulter  neglect, 
miiiht  have  been  received;  and  that 
if  it  shall  appear  that  the  said  rents 
and  profits  have  been  more  than  suf- 
ficient to  satisfy  the  principal  and 
interest  of  the  said  mortgage,  then 
that  the  residue  may  be  paid  over 
to  the  plaintiff;  and  that  the  plaint- 
iff may  be  permitted  to  redeem  said 
premises,  he  being  ready  and  will- 
ing, and  hereby  offering  to  pay  what, 
if  anything,  shall  appear  to  remain 
due  in  respect  to  tlie  principal  and 
interest  on  the  said  mortgage;  and 
that  tile  defendant  may  be  adjudged 
to  deliver  up  the  possession  of  the 
said  mortgaged  preini.ses  to  the 
plaintiff  or  to  such  pf-rson  as  he  shall 
direct,  free  from  all  incumbrances 
made  by  him  or  by  any  person 
claiming  under  him.  and  may  also 
deliver  over  to  the  plaintiff  all  deeds 


and  writings  in  his  custody  or  power 
relating  to  said  mortgaged  premises; 
or  for  such  further  or  other  relief  as 
to  the  court  shall  seem  just."  3 
Barb.  Ch.  Pr..  foot  paging  754.  Or, 
where  the  bill  is  by  the  mortgagor 
against  the  mortgagee,  the  follow- 
ing: "That  an  account  be  taken  of 
the  amount  now  due  to  the  defend- 
ant on  said  bond  and  mortgage,  for 
principal  and  interest,  and  that  the 
plaintiff  may  be  at  liberty  to  redeem 
said  mortgaged  premises  upon  pay- 
ment of  whatever  may  be  found  so 
due;  and  that  the  defendant,  upon 
payment  thereof,  may  acknowledge 
satisfaction  of  said  mortgage,  and 
discharge  the  same  of  record.  Or  for 
such  further  or  other,"  etc.  3  Barb. 
Ch.  Pr.  756.  In  Still  well  v.  Hamm, 
97  Mo.  579.  11  S.  W.  25.3,  it  was  held 
that  a  petition  was  sufficient  where 
the  relief  they  sought  in  the  petition 
was  the  redemption  of  a  mortgage, 
and  it  prayed  that  the  deed  in  ques- 
tion be  declared  a  mortgage:  that 
the  title  be  quieted;  thatthe  defend- 
ants be  divested  of  title,  and  tliat  an 
accounting  be  had,  several  persons 
being  made  defendants  and  relief 
being  asked  against  each  according 
to  his  relation  to  the  case. 


§  481.J  REMEDIES    FOE    ENFORCEMENT   OF    LIENS,  ETC.  755 

and  report  the  amount  due  upon  the  mortgage  for  principal 
and  interest,  though  this  determination  may  be  made  by  the 
court  without  reference.  The  court  should  further  order  the 
defendant  to  pay  the  amount  found  due  within  a  specified 
time  after  it  is  determined,  either  by  the  court  or  upon  confir- 
mation of  the  master's  report,  together  with  the  costs;  and 
that  upon  the  payment  of  the  amount  so  found  the  defendant 
shall  convey  to  the  complainant  the  mortgaged  premises,  and 
if  default  in  the  payment  of  the  said  amount  be  made  by  the 
complainant  that  his  bill  be  dismissed  with  costs.  There  is  no 
fixed  rule  as  to  the  time  allowed  for  the  redemption;  it  is 
fixed  by  the  court  and  rests  in  its  sound  discretion,  depending 
upon  the  circumstances  of  the  particular  case.^ 

§481.  Statutes  of  limitation  —  Laches. —  The  time  within 
which  the  action  to  redeem  may  be  brought  depends  largely 
upon  the  statutes  regulating  the  limitation  of  the  action  in  the 
different  jurisdictions.  Generally,  equity  actions  are  not  alto- 
gether governed  by  statutes  of  limitation  except  where  direct 
reference  is  made  to  the  particular  action;  but  by  analogy 
they  more  or  less  follow  such  statutes.  In  many  jurisdictions, 
however,  the  statutes  apply  directl}'  to  the  right  to  redeem,  while 
in  others  they  are  not  so  directly  applied,  and  in  such  case  the 
court  exercises  a  sound  discretion,  being  governed  largely  by  the 

iln  Ferine  v.  Dunn,  4  Johns.  Cli.  demption.  This  was  so  understood 
(N.  Y.)  140,  141,  the  chancellor  said:  by  the  counsel  in  the  case  already 
"I  take  it  for  granted  that  the  time  cited  from  17  Vesey.  The  usual  de- 
to  be  followed  by  the  decree  to  pay  cree,  in  these  cases  of  bills  to  redeem 
the  mortgage  debt,  whether  on  a  bill  where  the  party  fails  to  redeem,  or 
to  redeem,  or  upon  a  bill  to  foreclose,  is  not  entitled  to  redeem,  is  that  the 
is  not  absolutely  certain,  but  rests  bill  be  dismissed.  Smith  v.  Valence, 
in  discretion,  and  will  be  regulated  1  Rep.  in  Ch.  90;  Roscarrick  v.  Bar- 
by  the  circumstances  of  the  particu-  ton,  1  Ch.  Cas.  217;  St.  John  v.  Turner, 
lar  case.  In  the  precedents  in  the  2  Vern.  418;  Packington  v.  Barrow, 
Equity  Draftsman,  the  time  is  left  Prec.  in  Ch.  216;  Knowles  v.  Spence, 
blank.  But  I  am  inclined  to  think  1  Eq.  Cas.  Ahr.  3)5;  Proctor  v.  Gates, 
that  six  months  is  the  usual  time  2  Atk.  139:  Hartpolev.  Walsh,  4  Bro. 
under  the  English  practice  on  bills  P.  C.  369;  Van  Heytheuysen's  Eq. 
to  redeem;  and  there  is  the  more  Draftsman,  648  (New  York  ed.). 
reason  for  the  allowance  of  such  a  Such  a  dismissal,  I  apprehend, 
liberal  time,  considering  that  the  amounts  to  a  bar  of  the  equity  of 
time  will  not  afterwards  be  enlarged,  redemption,  because  it  might  be 
and  that  a  failure  of  payment  by  the  pleided  in  bar  of  a  new  bill  to  re- 
time wou.d,  probably,  be  equivalent  deem." 
to  a  forfeiture  of  the  equity  of  re- 


756 


REMEDIES    FOR    ENFORCEMENT    OF    LIENS,  ETC. 


[§  482. 


general  statutes  in  force;  as,  for  example,  in  some  jurisdic- 
tions ten  years  after  foreclosure  of  the  mortgage  has  been  de- 
termined as  a  limitation  upon  an  action  to  redeem,  while  in 
others  a  longer  period  has  been  allowed.  The  particular  equi- 
ties in  the  case  involved  have  very  much  to  do  with  settling 
the  matter/ 

II.  Marshaling  Securities. 

§  482.  The  equitable  doctrine. —  The  court  of  equity  jeal- 
ously protects  the  rights  of  all  parties  at  all  times,  following 
and  careiuUy  carrying  out  in  letter  and  spirit  the  maxim, 
"Equality  is  equity,"  and  that  other  wholesome  and  just 
maxim,  "He  who  seeks  equity  must  do  equity."  And  so  in 
the  matter  of  protecting  securities  and  directing  the  applica- 
tion of  the  assets  of  a  debtor,  the  doctrine  of  the  court  often 
applied  is  that  when  one  has  a  lien  upon  two  or  more  funds, 
ho  must  so  act  as  not  to  disappoint  the  just  expectations  of  an- 
other who  has  a  lien  upon  one  of  them  only.  And  so  where  a 
creditor  has  collateral  security  sufficient  to  pay  his  claims,  equity 
wnll  ])rotect  the  creditors  who  have  no  lien  upon  it  by  com- 
pelling the  creditor  having  the  collateral  security  to  resort  to 
it  m  the  first  instance.-     And  where  two  persons  have  a  lien 


I  In  McPherson  v.  Hayward,  81 
Ma  329,  17  Atl.  164,  166,  it  was  held 
that  the  question  of  laches  does  not 
arise  under  a  bill  to  redeem  a  mort- 
gage; that  the  duration  of  the  niort- 
gas;or"s  rights  to  redeem  is  clearly- 
defined  by  law  and  cannot  be 
abrided  or  enlarged  by  the  court; 
that  the  right  continues  indefinitely 
until  barred  by  some  process  of  fore- 
closure, or  by  twenty  year.s'  adverse 
possession  of  the  land  by  the  mort- 
gagee. Sanford  v.  Gaboon,  63  Mich. 
223,  -^9  N.  W.  840;  Gunter  v.  Smith, 
113  Ga.  18.  38  S.  E.  ^74;  Houston  v. 
Nat.  etc.  Ass'n.  80  Miss.  31,31  So.  540; 
Kiilmer  v.  Gallaher,  116  Iowa,  666, 
88  N.  VV.  959;  Ross  v,  Leavitt,  70  N. 
H.  602,  50  Atl.  110.  In  Carpenter  v, 
Plagse.  192  III.  83,  61  N.  E.  5  JO,  it  was 
held  that  whf  re  the  debt  secured  by 
a  mortgage  is  barred  by  limitation, 


the  right  to  redeem  therefrom  is 
also  barred.  Law  v.  Citizens',  etc. 
Bank,  85  Minn.  411,  89  N.  W.  320.  In 
Stephenson  v.  Kilpatrick,  166  Mo. 
262,  65  S.  W.  775,  it  was  held  that 
where  the  mortgagor  was  prevented 
by  fraud,  surprise,  accident  or  mis- 
take from  redeeming  the  mortgage 
within  the  time  allowed  by  the 
court  in  its  decree,  equity  will  grant 
him  relief.  Mason  v.  Stevens.  91  111. 
A  pp.  623.  Hall  v.  Wescott.  15  R.  L 
373,  held  that  six  years  and  a  half 
was  not  a  sufficient  lapse  of  time  to 
bar  a  suit  to  redeem  from  a  mort- 
gage. Ezzel  V.  Watson,  83  Ala.  1,0; 
Bancroft  v.  Sawin,  143  Mass.  144,  9 
N.  E.  539. 

'^  Midgeley  v.  Slocorab,  32  How.  Pr. 
(N.  Y.)  426;  Story,  Eq.  Jur,,  sec.  633; 
1  Pom.  Eq.  Jur.,  sec.  396;  Piatt  v. 
St   Clair's  Heirs,   6  Ohio,   227,  242, 


§  4:82.]  REMEDIES    FOR    ENFORCEMENT    OF    LIENS,  ETC.  ^57 

upon  the  same  piece  of  property  which  is  not  sufficient  to  sat- 
isfy both,  and  one  of  them  has  a  lien  for  his  debt  upon  another 
piece  of  propertv,  he  may  be  compelled  to  exhaust  the  latter 
before  he  can  report  to  the  former.  This  doctrine  was  early 
announced  in  the  En-lish  court  of  chancery  by  Lord  llard- 
wicke:  "  If  a  person,  who  has  two  real  estates,  mortgages  both 
to  one  person,  and  afterwards  only  one  estate  to  a  second  mort- 
gagee, the  court,  in  order  to  relieve  the  second  mortgagee,  has 
directed  the  lirst  to  take  his  satisfaction  out  of  that  estate  only 
which  is  not  in  the  mortgage  to  the  second  mortgagee,  if  that 
is  sufficient  to  satisfy  the  first  mortgage  in  order  to  make  room 
for  the  second  mortgagee."  ' 

The  doctrine  is  often  applied  in  the  settlement  of  insolvent 
partnership  estates,  and  in  cases  where  one  of  the  membersof  the 
copartnership  has  died  and  the  concern  is  being  settled  by  a  sur- 
viving partner.    The  court  of  equity  will  require  the  firm  cred- 
itors to  resort  first  to  the  partnership  assets  before  resort  can  be 
had  to  the  assets  of  the  individual  partners,  and  compel  the  indi- 
vidual creditor  to  resort  to  individual  assets  before  resorting 
to  the  copartnership  fund.     But  the  court  in  enforcing  this 
doctrine  will  in  no  way  trench  upon  the  rights  or  prejudice  the 
interests  of  those  who  are  entitled  to  security  upon  the  double 
fund,  for  such  a  proceeding  would  be  inequitable.    It  can  only 
apply  the  doctrine  as  a  protection  to  the  parties  and  not  in  a 
way\o  destroy  their  equities.     The  right  to  the  enforcement 
of  the  doctrine  does  not  rest  upon  the  fact  merely  that  a  double 
security  has  been  given,  and  that  there  is  a  junior  incumbrance 
on  a  part  of  the  same  property;  it  must  further  appear  that 

where  it  was  said:  "It  is  a  rule  of  that  she  was  entitled  to  have  secu- 

equity,   perfectly  well    established,  rities  belonging  to  her  husband,  also 

that  where  one  has  a  lien  upon  two  pledged  for  such  debts,  applied  first 

funds,  and  another  a  posterior  lien  in  payment  of  the  debt  as  against 

upon  only  one  of  them,  the  one  hav-  creditors  of  her   husband  who  had 

ing  both  liens  will  be  compplled  to  levied  upon  such  securities.  People's, 

assert  his  claim  first  upon  the  sub-  etc.  Ass'n  v.  Mayfield,  42  S.  C.  424, 

iect  of  his  exclusive  lien,  so  that  he  20  S.  E.  290;  State  ex  rel.  Fields  v. 

may  be  satisfied,  if  possible,  without  Cryts,  87  Mo.  A  pp.  440;   Dunlap  v. 

interfering   with  the  rights  of  the  Dunseth,  81  Mo.  App.  17. 
junior  creditor."     In   McMullen   v.        iLanoy  v.  Duke  of  Athol,  2  Atk. 

Ritchie,   64   Fed.   253,   it  was    held,  446;    Evertson   v.  Booth.   19  Johns, 

where  L  wife  had  pledged  stock  as  486;  Kendall  v.  New  England  Co.,  13 

security   for    her    husband's   debts,  Conn.  381 


758  REMEDIES    FOK    ENFORCEMENT    OF    LIENS,  ETC.  [§  483. 

the  first  lien  bolder  will  not  be  prejudiced  or  suffer  from  the 
enforcement  of  the  doctrine;  and  the  fact  often  relied  upon  in 
this  connection  is  tbat  the  first  incumbrancer  is  fully  secured 
by  his  lien  upon  the  property  which  is  not  covered  by  the 
second  incumbrance.' 

Closely  connected  with  and  quite  inseparable  from  the  doc- 
trine of  marshaling  securities  and  assets  is  that  principle  al- 
ready discussed  which  compels  the  sale  of  the  incumbered  or 
pledged  property,  on  decree  for  foreclosure  to  satisfy  the  debt, 
by  inverse  order  of  alienation.^ 

§  483.  When  doctrine  not  observed  —  Subrogation. —  This 
doctrine  of  marshaling  securities  and  assets  is  further  applied 
in  protecting  the  lien  rights  of  junior  lien  holders  or  incum- 
brancers where  their  security  has  been  destroyed  or  infringed 
upon  without  reason  and  against  equity  b}''  a  prior  incum- 
brancer, who,  disregarding  the  rights  of  the  junior  creditor, 
appropriates  the  security  on  which  the  junior  creditor  has  a 
lien  to  secure  his  claim,  and  upon  which  he  alone  relies  to  sat- 
isfy the  prior  lien,  leaving  unappropriated  the  property  upon 
which  he  also  has  a  lien  but  upon  which  the  junior  creditor 

'State  Bank  v.  Roche,  35  Fla.  357,  there  is  a  junior  incumbrance  on  a 
17  So,  6)2;  Cooper  v,  Bigley,  13  Mich,  part  of  the  property.  It  should  be 
463,  474,  In  Detroit  Savings  Bank  v,  further  made  to  appear  that  no  in- 
Truesdail,  38  Mich.  430, 439,  the  court  jury  will  result  from  an  enforce- 
say:  "The  object  of  tlie  rule  is  not  raent  of  the  rule. —  that  the  prior 
to  take  from  the  prior  incumbrancer  creditor's  rights  will  not  thereby  be 
any  substantial  right,  but  to  require  impaired,  Brinkerhoflf  v.  Marvin,  5 
him  to  enforce  his  .riglits  in  such  Johns.  Ch,  320;  Post  v.  Mackall,  3 
order  of  priority  as,  without  loss  to  Bland,  486;  Aldrich  v.  Cooper,  note, 
himself,  will  protect  as  far  as  prac-  2  White  &  Tudor's  Eq.  Cases,  232  et 
ticable  the  subsequently  acquired  in-  seq."  In  Gotzian  v.  Shakman,  89 
terests  of  others.  The  creditor  has  Wis.  52,  62  N.  W.  304,  it  was  held 
a  right  to  come  into  court  in  the  tiiat  the  delay  in  realizing  upon  a 
first  instance  and  look  to  either  one  mortgage  security  will  not  prevent 
or  both  of  the  funds  or  projjerty  cov-  an  attaching  creditor  from  being  re- 
ered  by  his  securities  for  the  satis-  quired  to  exhaust  such  security  at 
faction  of  his  debt.  By  making  sub-  the  instance  of  a  subsequent  attach- 
sequent  purchasers  or  incumbrancers  ing  creditor  where  the  proceeds  of 
parties,  he  thereby  gives  them  an  op-  the  attached  property  will  be  kept 
portunity  to  come  into  court  and  intact  during  the  procedure.  New 
maUe  such  a  case  as  will  show  they  York,  etc,  Ass'n  v.  Brennan,  70  N.  Y. 
are  entitled  to  this  protection.  It  is  S.  916. 
not  sufficient  that  it  appears  a  double  ^  Ante,  §  474. 
security  has   been  given,  and  that 


§  483.]  REMEDIES    rOK    ENFORCEMENT   OF    LIENS,  ETC.  T59 

has  no  claim.     It  is  said  to  be  a  "principle  of  equity  that  if 
a  creditor  has  a  lien  on  two   different  parcels  of  land,  and 
another  creditor  has  a  lien  of  a  younger  date  on  one  of  these 
parcels  only,  and  the  prior  creditor  elects  to  take  his  whole 
demand  out  of  the  land  on  which  the  junior  creditor  has  a 
lien,  the  latter  will  be  entitled  either  to  have  the  prior  cred- 
itor thrown  upon  the  other  fund,  or  to  have  the  prior  lien  as- 
signed to  him,  and  to  receive  all  the  aid  it  can  afford  him. 
This  is  a  rule  founded  in  natural  justice.     .     .     .     It  is  recog- 
nized in  every  cultivated   system   of  jurisprudence.     In  the 
English  law  it  is  an  ordinary  case,  that,  if  a  party  has  two 
funds,  he  shall  not,  by  his  election,  disappoint  another  who 
has  one  fund  only,  but  the  latter  shall  stand  in  the  place  of 
the  former,  or  compel  the  former  to  resort  to  that  fund  which 
can  be  affected  by  him  only.     The  party  liable  to  be  affected 
by  this  election  is  usually  protected  by  means  of  substitution. 
Thus,  for  instance,  if  a  creditor  to  a  bond  exacts  his  whole  de- 
mand of  one  of  the  sureties,  that  surety  is  entitled  to  be  sub- 
stituted in  his  place,  and  to  a  cession  of  his  rights  and  secu- 
rities, as  if  he  was  a  purchaser,  either  against  the  principal 
debtor  or  the  co-sureties.     This  doctrine  of  substitution,  which 
is  familiar  to  the  civil  law,  and  the  law  of  those  countries  in 
which  that  system  essentially  prevails,  is  equally  well  known 
in  the  English  chancery."' 

It  is  a  further  recognition  of  that  doctrine  which  compels 
the  prior  creditor,  when  he  will  not  be  prejudiced  by  so  doing, 
to  proceed  against  the  securitj'^  not  liable  for  the  debt  of 
a  junior  lien  holder,  and  if  he  disregards  this  duty  and,  con- 
trary to  equity,  exhausts  the  fund  or  property  to  which  the 
junior  creditor  can  alone  resort,  the  court,  by  way  of  protect- 
ing the  junior  creditor  in  his  security,  will  place  him  in  the 
position  of  the  prior  creditor;  that  is  to  say,  the  junior  cred- 
itor will  be  subrogated  to  the  right  the  prior  creditor  had  in 
the  security  not  appropriated  or  exhausted  to  the  extent  he 
has  been  deprived  of  his  lien.^    It  has  been  held,  however,  that 

1  Cheesebrough  v.  Millard,  1  Johns.  R.  71,  31   Pittsb.  Leg.  J.  (N.  S.)  62. 

Ch.  (N.  Y.)  409,  412.  where  the  plaintiff  held  a  mortgage 

*  Alston  V.  Munford,  1  Brock.  (U.  on  a  certain  parcel  of  property  be- 

S.)  266;  Evans  v.  Fisher,  40  Miss.  643..  longing  to  the  defendants,  and  there 

In  Selinger  v.  Myers,  24  Pa.  Co.  Ct  were  judgments  both  prior  and  sub- 


760  REMEDIES    FOR    ENFOKCEMENT    OF    LIENS,  ETC.  [  ?(  -iS-L 

this  rule  will  not  be  applied  so  as  to  infringe  upon  the  r!^!,hts 
of  a  lonafide  purchaser,'  or  to  deprive  a  debtor  of  his  homo- 
stead;  but  as  to  the  latter  doctrine  there  is  a  conflict  of  au- 
thorities.^ In  some  jurisdictions  it  has  been  held  that  a  junior 
lienor  who  is  secured  only  by  property  not  claimed  as  a  home- 
stead is  entitled  to  compel  a  senior  creditor,  whose  lien  em- 
braces both  the  property  upon  which  the  junior  lien  exists  and 
the  homestead  of  the  debtor,  to  first  exhaust  the  homestead  in 
satisfaction  of  his  debt.'  But  in  other  jurisdictions,  and  it  would 
seem  that  the  weight  of  authority  is  with  them,  it  is  held  that 
such  an  application  of  the  doctrine  would  be  contrary  to  the 
policy  of  the  law,  which  is  generally  conceded  to  be  to  afford 
protection  to  debtors  and  their  families.  And  in  these  juris- 
dictions it  is  held  that  not  only  can  the  junior  lien  holder  be 
deprived  of  the  right  of  enforcing  proceedings  against  the 
homestead  where  other  property  is  incumbered  in  tiie  same 
mortgage  or  lien,  but  it  also  gives  to  the  debtor  the  right  to 
insist  that  the  property  other  than  the  homestead  property 
shall  be  first  relied  upon.*  This  doctrine  is  not  applied  in  the 
case  of  unsecured  creditors  to  the  extent  of  giving  them  the 
right  to  force  a  secured  creditor  to  rely  on  any  particular  se- 
curity or  securities  and  release  others  to  them.* 

§  484.  When  a  paranionnt  creditor  releases  security  held 
by  him  alone. —  The  paramount  creditor  has  no  right  to  so 
deal  with  his  security  as  to  injure  a  junior  lien  owner,  if  he  has 
knowledge  of  the  facts,  by  notice  or  otherwise;  and  where  the 

sequent  to  the  mortgage  which  were  Dow,  18  Wis.  241;  White  v.  Polleys, 

also  liens  on  other  lands  of  the  de-  20  Wis.  503. 

fendants.  as  well  as  the  land  mort-  *Hallmanv.HallnQan,124Pa.St.347. 

gaged,  and  the  prior  lienors  satisfied  *  Armitage  v.  Toll,  64  Mich.  412; 

their  claims  out  of  the  lands  covered  Blake  v,  McCosh,  91  Iowa,  544;  Des 

by  the  mortj^age,  and  the  remaining  Moines   Nat.    Bank   v.   Harding,   86 

funds  were  not  sufficient  to  pay  the  Iowa,  153;  McLaughlin  v.  Hart,  46 

plaintiff's  claim,  it  was  held  that  he  Cal.  63>j;  Dunn  v.  Buckley,  56  Wis. 

was    entitled    to  be    subrogated   to  190;  Rozek  v.  Redzinski,  87  Wis.  525. 

their  rights  against  the  other  lands  ^ state,  etc.   v.  Cryts,  87  Mo.  App. 

of  the  defendant  4J0,  where  it  was  held  that  a  cred- 

1  Webb  V.  Hunt  (Ind.  Ter.,  1899),  53  itor  holding  two  or  more  securities 
S.  W.  487.  for  his  debt  will  not  be  compelled  to 

2  Armitage  v.  Toll,  64  Mich.  412.  31  surrender  one  of  them  in  favor  of  an 
N.  W.  408;  Mitchelson  v.  Smith,  28  unsecured  creditor,  even  though  it 
Neb.  583,  44  N.  W.  87.  But  see  Searie  appears  that  the  one  is  ample  to  pay 
J.  Chapman,  121  Mass.   19;  Jones  v.  his  debt. 


§  484.]  REMEDIES    FOK   ENFORCEMENT    OF    LIENS,  ETC.  761 

prior  lien  holder  having  notice  of  a  junior  lien  on  a  portion  of 
the  security  he  has  to  secure  his  debt,  without  the  consent  of 
the  junior  lien  holder  negligently  or  wilfully  releases  the  prop- 
erty upon  which  he  alone  has  security,  thus  rendering  subro- 
gation impossible  for  the  junior  incumbrancer  and  so  deprives 
hira  of  his  security,  it  has  been  held  that  he  will  thereby  lose 
his  lien  upon  the  doubly  charged  fund  or  security  to  the  extent 
of  the  value  of  the  security  he  released,  for  it  was  his  equitable 
duty,  knowing  the  status  of  the  junior  security,  to  preserve  it 
if  he  could  do  so  without  injury  to  his  own  rights.    It  has  been 
said  that  "  the  law  requires  every  man  so  to  deal  with  his  own 
as  not  unnecessarily  to  injure  another.     He  may  sell  his  prop- 
erty to  whom  he  pleases,  without  consulting  his  neighbor,  or 
inquiring  how  it  may  affect  his  interests.     And  if  he  take  a 
mortgage  of  A.  to-day,  he  may  to-morrow,  or  next  week,  release 
a  part  or  the  whole  of  the  mortgaged  premises  on  the  request 
of  the  mortgagor,  without  troubling  himself  to  inquire  whether 
in  the  meantime  some  one  has  not  taken  a  subsequent  mort- 
gage, and,  if  so,  whether  it  would  be  agreeable  to  such  person 
that  he  should  release.     It  is  the  duty  of  a  subsequent  mort- 
gagee, if  he  intends  to  claim  any  rights  through  the  first  mort- 
gage, or  that  may  affect  the  rights  of  the  mortgagee  under  it, 
to  give  the  holder  thereof  notice  of  his  mortgage,  that  the  first 
mortgagee  may  act  with  his  own  understandingly.    If  he  does 
not,  and  the  first  mortgagee  does  with  his  mortgage  what  it 
was  lawful  for  hira  to  do  before  the  second  mortgage  was  given, 
without  knowledge  of  its  existence,  the  injury  is  the  result  of 
the  second  mortgagee's  negligence  in  not  giving  notice.  While 
the  law  requires  every  man  to  deal  with  his  own  so  as  not  to 
injure  another,  it  imposes  a  greater  obligation  on  the  other  to 
take  care  of  his  own  property  than  on  a  stranger  to  take  care 
of  it  for  him.    And  to  make  it  the  duty  of  the  first  mortgagee 
to  inquire  before  he  acts,  lest  be  may  injure  some  one,  would 
reverse  this  rule,  and  make  it  his  duty  to  do  for  the  second 
mortgagee  what  the  latter  should  do  for  himself.    To  affect  the 
conscience,  therefore,  of  the  first  mortgagee, —  for  this  whole 
doctrine  is  one  of  equity  jurisprudence   and  not  of  positive 
law, —  it  would  seem  that  he  should  have  actual  knowledge  of 
the  second  mortgage.     We  do  not  say  notice  from  the  second 
mortgagee  is  absolutely  necessary  to  enable  him  to  claim  the 


762  REMEDIES    FOR    ENFORCEMENT    OF    LIENS,  ETC.  [§  485. 

rights  of  which  we  have  been  spealving;  but  we  do  think  that 
the  existence  of  the  second  mortgage  should  clearly  be  brought 
home  to  the  knowledge  of  the  first  mortgagee,  in  such  a  way 
as  to  show  an  intentional  disregard  by  him  of  the  interests  of 
the  subsequent  mortgagee."^ 

§  485.  Eiiforcenieiit  of  the  doctrine. —  The  enforcement  of 
the  doctrine  is  in  the  equity  court,  and  b}'  the  use  of  the  usual 
equity  procedure  the  order  of  the  sale  of  the  property  is  gen- 
erally controlled  by  the  decree  of  the  court  in  foreclosure  pro* 
ceedings  so  as  to  protect  the  junior  lien  holder  or  judgment 
creditors  when  the  parties  are  before  the  court.  Where  there 
is  a  threatened  disregard  of  the  principle,  the  junior  incum- 
brancer may  ask  to  be  impleaded  if  a  case  is  pending  to  which 
he  has  not  been  made  a  party;  or  if  the  proceeding  is  a  stat- 
utory one  or  other  than  in  a  court  of  equity,  injunction  is  often 
resorted  to  by  filing  a  bill,  if  necessary,  showing  the  status  of 
the  plaintiff  and  that  he  is  entitled  to  invoke  the  doctrine  and 
asking  equitable  relief  by  way  of  marshaling  the  securities  of 
the  creditors.  And  when  necessary  and  in  a  proper  case,  the 
defendants  in  an  equity  case  may  file  a  cross-bill,  if  substantive 
relief  is  required,  to  enforce  their  equities  by  way  of  marshal- 
ins:  securities  or  assets.^  But  the  rule  that  the  senior  creditor 
must  not  be  injured  or  unjustly  delayed  is  always  applicable  in 
the  enforcement  of  the  doctrine.*  An  injunction,  except  in 
cases  of  fraud  or  a  negligent  or  wanton  disregard  of  the  rights 
and  equities  of  a  junior  lien  holder,  is  seldom  resorted  to,  for 
generally  the  right  of  subrogation  is  a  sufficient  protection;  by 
decree  the  benefit  of  another  security  equally  as  good  as  the 
one  of  which  he  has  been  deprived  is  given  to  the  junior  im- 
cumbrancer  or  lien  owner.  The  right  to  redeem,  and  thus  to 
be  subrogated  to  the  rights  of  the  principal  mortgagee,  is  gen- 

iThelanguageofthecourtin James  such   judgment."     Last  syllabus  in 

V.  Brown,  11  Mich.  25,  30.     "  If  a  ]udc;-  James  v.  Hubbard,  1  Paige  Ch.  (N.  Y.) 

ment  creditor  discharges  from  the  2'i8. 

lien  of  his  judgment  a  part  of  the  ^jjayes  v.  Ward,  4  Johns.  Ch.  (N. 

lands  which  ought  to  be  first  resorted  Y.)  123,  131;  Bacon  v.  Devinuey,  55 

to,  the  owner  of  tlie  other  parts  of  N.  J.  Eq.  449. 

the  lands  who  has  a  prior  equity  will  3  Everton  v.  Booth,  19  Johns.  486; 

be  entitled  to  a  deduction  from  the  Hudkins  v.  Ward,  30  W.  Va.  204,  8 

judgment  of  tlie  value  of  the  lands  Am.  St.  Rep.  22;  General  Ins.  Co.  v. 

so  discharged,  before  his  lands  are  United  States  Ins.  Co.,  10  Md.  517,  69 

resorted  to  for  the  satisfaction   of  Am.  Dec.  174. 


§  486.]  REMEDIES   FOR   ENFORCEMENT    OF    LIENS,  ETC.  763 

erally  a  sufficient  protection.  If  money  has  been  paid  into 
court  the  order  of  the  court  distributing  it  will  usually  afford 
protection  to  all  lien  holders  entitled  to  the  equitable  relief.^ 

HI.  Creditors'  Bills  and  Bills  in  Aid  of  Execution. 

§  486.  Creditors'  suits  — Kinds   and  object  of.— Equity 
aids  the  creditor  in  the  collection  of  his  debt  only  in  cases 
where  there  is  no  legal  remedy,  or  where  the  legal  remedy 
has  been  exhausted.     The  equity  court  is  not  a  tribunal  for 
the  collection  of  debts,  but  it  will  protect  and  enforce  the  equi- 
table rights  of  a  creditor  by  preventing  the  fraudulent  appro- 
priation of  the  property  of  his  debtor  so  as  to  delay  and  hinder 
its  legal  application  to  the  discharge  of  his  just  and  lawful 
debts  by  following  his  personal  assets,  his  money,  choses  in 
action,  effects,  or  property  when  fraudulently  conveyed,  in- 
cumbered,  covered    or   possessed    by   another   so   that   legal 
process  cannot  reach  them.     Creditors'  equitable  actions  had 
their  orio-in  in  the  necessity  for  relief  which  the  common  law, 
because  ""of  its  narrowness,  could  not  afford.     Judgments  at 
law  could  be  obtained,  but  where  fraudulent  hinderances  and 
obstructions  defeated  the  writ  of  execution,  the  amount  ad- 
judged due  and  payable  could  not  be  collected   because  the 
writ  of  execution  is  so  confined  to  legal  interests  that  equitable 
interests  could  not  be  reached  by  it;  and  so  the  fraudulent 
evasion  of  the  debtor,  if  no  other  remedy  existed,  would  suc- 
ceed.    These  equitable  remedies,  instituted  by  creditors'  bills 
and  bills  in  aid  of  execution,  came  into  use,  therefore,  to  aid 
the  law  in  enforcing  the  collection  of  its  judgments  by  remov- 
ing these  fraudulent  obstructions  and  subjecting  the  property 
rights,  interests  and  effects  of  the  debtor  to  the  payment  of 
his  debts.''' 

iCole  V.  Malcolm,  66  N.  Y.   363;  of  debts;  and  yet  they  aflFord  their 

Frost  V.  Yonkers  Sav.  Bank,  70  N.  Y.  aid  to  enable  creditors  to  obtain  pay- 

553    26    Am    Rep.   637;  Hudkins  v.  ment,  when  their  legal  remedies  have 

Ward  30  W  Va.  204,  8  Am.  St.  Rep.  proved  to  be  inadequate.     It  is  only 

22-  Gotzian  v.  Shakman.  89  Wis.  52,  by  theexhihitionofsuchfactsasshow 

46  Am.  St.  Rep.  820;  Robson's  Appeal,  that  these  have  been  exhausted  that 

117  Pa  St  6-^8  their  jurisdiction  attaches.     Hence 

21n  Webster  v.  Clark,  25  Me.  313,  it  is  that  when  an  attempt  is  made 

814  it  was  said:  "Courts  of  equity  by  a  process  in  equity  to  reach  equi- 

are  not  tribunals  for  the  collection  table  interests,  choses  m  action,  or 


764  REMEDIES    FOR    ENFORCEMENT    OF    LIENS,  ETC.  [§  486. 

It  has  been  held  to  be  an  undeniable  proposition  that  "  the 
jurisdiction  of  a  court  of  equity  will  be  exercised  when  the 
principles  of  law  by  which  the  ordinary  courts  are  guided 
give  a  right;  but  the  powers  of  those  courts  are  not  sufficient 
to  afford  a  complete  remedy,  or  their  modes  of  proceeding  are 
inadequate  to  the  purpose.  Hence  a  system  of  jurisprudence 
has  grown  up  adapted  to  afford  a  remedy  for  injuries  not  cog- 
nizable in  other  courts."  ^ 

These  actions  are  of  two  kinds:  (1)  Judgment  creditors' bills; 
and  (2)  bills  in  aid  of  execution.^  While  the  object  is  quite 
the  same,  the  facts  upon  which  these  actions  depend  and  the 
procedure  are  quite  different.  Fraud  and  discovery,  however, 
as  well  as  a  failure  of  a  complete  and  adequate  remedy  at 
law,  is  the  basis  of  their  equitable  jurisdiction;  the  court  pro- 
ceeding upon  the  theory  that  the  property  and  effects  of  the 
debtor,  which  are  fraudulently  held  by  another  to  protect 
them  from  the  writ  of  execution,  are  held  in  trust  for  the 
benefit  of  the  debtor's  creditors;  and  because  fraud  and  trust 
are  peculiarly  of  chancery  jurisdiction  its  powers  ought  to  be 
so  exercised  that  no  subtle  or  cunning  will  be  able  to  prevent 
the  detection  of  the  fraud  or  cause  the  failure  of  justice." 

Judgment  creditors'  bills  are  invoked  to  subject  the  personal 
assets,  choses  in  action,  moneys,  property  or  effects  of  a  debtor 
fraudulently  assigned  or  concealed  to  protect  them  from  levy 
of  execution  to  the  payment  of  his  debts,  while  the  bill  in  aid 
of  execution  is  filed  to  aid  and  legalize  the  lien  of  a  judgment 
or  an  execution  levied  upon  property  fraudulently  conveyed  by 

the  avails  of  property  fraudulently  ing  that  the  court  had  authority  to 
conveyed,  the  bill  should  state  that  compel  a  trustee  of  a  debtor  fraud- 
judgment  has  been  obtained,  and  ulently  holding  choses  in  action, 
that  execution  has  been  issued,  and  money  or  stock,  to  protect  it  from 
that  it  has  been  returned  by  an  execution,  to  pay  it  over  to  the  cred- 
oiEcer  without  satisfaction."  This  itor,  and  can  direct  a  transfer  and  sale 
was  also  adjudged  to  be  the  early  of  the  property  for  the  beneht  of  the 
English  rule  and  well  settled.     The  creditor. 

language  of  the  court  was  also  ap-  i  Hadden  v.  Spader,  20  Johns.  Rep. 

proved    and    quoted    in    Taylor    v.  (N.  Y.)  563. 

Bowker,    111  U.   S.   110,  115.      In   a  2W'iiiiams  v.  Hubbard,  Walk.  Ch. 

very  early  case  in  New  York  (Hadden  (Mich.)  28,  29;  State   Bank  v.  Belk 

v.   Spader,  20  Johns.  Rep.  554),  the  (Neb.,  1903),  94  N.  W.  617. 

court  discussed  somewhat  the  origin  '  1  Madd.  Ch.  8. 
and  necessity  of  such  actions,  hold- 


§  487. J  REMEDIES    J'OR    ENFORCEMENT    OF    LIENS,  ETC.  765 

the  debtor  to  avoid  the  judgment  and  execution  of  his  creditors, 
and  subject  it  to  the  payment  of  the  ju<lgrnent.^ 

§  487.  (1)  Jiulgment  creditors'  bills.— The  general  rule  is 
that  a  mere  creditor  at  large  who  has  not  obtained  a  judgment 
at  law  upon  his  claim  cannot  support  a  creditor's  bill.^  The 
bill  is  filed  to  reach  property,  or  the  avails  of  it,  which  cannot 
be  reached  by  an  execution  at  law,  and  convert  and  apply  it  to 
the  payment  of  the  judgment  debt.  The  property  or  inter- 
ests of  the  judgment  debtor  which  may  be  reached  by  this 
proceeding  are  varied  and  numerous,  consisting  of  every  kind 
and  nature,  whether  arising  from  real  or  personal  property. 
But  generally  the  interests  which  are  the  subject  of  the  pro- 
ceeding are  those  which  are  fraudulently  held  or  possessed  by 
another,  the  legal  title  of  which  is  not,  and  in  some  cases  never 
has  been,  in  the  name  of  the  debtor,  but  which  has  been  pur- 
chased and  the  consideration  paid  with  his  funds,  or  money, 
or  property,  and  held  by  another  for  tb.e  purpose  of  avoiding 
levy  and  sale  upon  execution;  or  by  assignment  or  transfer 
with  the  intention  of  avoiding  and  hindering  creditors.  As 
where  the  judgment  debtor  purchased  lands  and  had  them 
conveyed  to  a  third  person,  equity  will  determine  that  the 
lands  are  held  in  trust  for  the  creditors  of  the  debtor,  and 
upon  a  creditor's  bill  tiled  after  a  return  of  execution  unsatis- 
fied will  subject  his  equitable  interest  to  the  payment  of  his 
indebtedness;^  or  where  the  debtor  has  an  equitable  interest 
in  lands  sold  by  him,  the  unpaid  purchase-money  being  claimed 
by  an  assignee  upon  an  assignment  made  after  judgment  to 
avoid  creditors;*  or  interests  in  demands  collected  by  one  who 
holds  them  by  an  invalid  or  fraudulent  assignment.* 

By  this  proceeding,  equitable  assets,  choses  in  action,  inter- 
ests or  property  held  by  express  trust,  or  assets,  or  interests 
obtained  by  the  fraudulent  sale  of  property,  may  be  reached. 
The  extent  and  nature  of  the  remedy  has  been  the  subject  of 
statutory  enactment  in  most  of  the  states,  but  the  equitable 
jurisdiction  has  generally  been  observed.  Somewhat  new  and 
available   statutory  remedies  have    been  created  authorizing 

1  Williams  v,  Hubbard,  Walk.  Ch.  *  Wit  hers  v.  Carter,  4  Grat.  (  Va.) 

(Mioh.)  28.  407. 

2Jenks  V.  Horton,  114  Mich.  48.  » Blood   v.    Marcuse,   38   Cal.    590; 

SMaynard  v.  Hoskins,  9  Mich.  485.  Dunbar  v,  Harrison,  18  Ohio  St.  34 


7Q6  REMEDIES   FOE    ENFORCEMENT    OF    LIENS,  ETC.  [§  4881 

garnishee  attachment  proceedings,  which  in  many  cases  fur- 
nish an  adequate  remedy  but  do  not  preclude  resort  to  the 
equitable  remedy.^  From  the  very  nature  and  object  of  the  pro- 
ceeding the  bill  is  more  or  less  a  bill  of  discovery,  and  often 
the  success  of  the  action  is  largely  the  result  of  facts  discovered 
by  the  answer  obtained  from  the  defendants.^ 

§  488.  Some  requisites  to  the  filing  of  the  bill.— It  should 
appear  by  the  bill  and  be  proven  at  the  hearing  in  every  equity 
case  instituted  by  a  judgment  creditor's  bill  that  the  cause  pre- 
sented for  equitable  relief  belongs  to  some  of  the  general  heads 
of  equity  jurisdiction,  such  as  fraud,  trust,  accident,  mistake, 
account,  or  specific  performance,  and  if  this  does  not  appear, 
equity  will  not  assume  jurisdiction,  even  though  the  remedy  at 
law  has  been  exhausted.  The  strictness  of  this  rule  has  in  some 
cases,  however,  been  somewhat  modified  by  statutes;  but  the 
jurisdictional  facts  of  a  chancery  cause  should  be  found  in  some 
of  the  recognized  heads  of  equitable  jurisdiction  and  cannot 
rest  merely  m  the  fact  that  all  legal  remedies  have  been  ex- 
hausted. And  so  where  it  appeared  only  that  a  judgment  had 
been  obtained,  an  execution  issued  and  returned  unsatisfied,  and 
that  there  was  an  amount  owing  to  the  debtor  defendant  from 
another,  the  court  refused  to  entertain  jurisdiction  of  the  cause 
and  order  the  payment  of  the  debt  to  the  plaintiff,  holding 
that  the  court  had  no  power  to  assume  jurisdiction  really 
new  and  extending  beyond  the  limits  of  its  established  au- 
thority.^ 

1  Benedict  v.  T.  L.  V.  Land  &  Cattle  an  execution  issued  upon  a  judgment 

Co.  (Neb..  1002),  92  N   W.  210;  Nurse  ajjainst  thedebtor  authorized  by  him 

V.  Weitz  (Jovva.  1903),  95  N.  W.  251.  for  the  purpose  of  defrauding  credit- 

2Farnham  v.  Campbell,  10  Pai.a;e  ors.  it  may  be  reached  by  creditors 

Ch.  (N.  Y.)  598,  wliere  an   insolvent  of  the  debtor  to  satisfy  their  debts, 

debtor  assigned  the  legacy  for  an  in-  Taylor  v.  Perkins,  26  Wend.  (N.  Y.) 

sufficient  consideration  with  intent  125;  Tawas,  etc.  Ry.   Co.   v.  Circuit 

to  delraud  liis  creditors,   his  in.solv-  Judge.  44  Mich.  479;  Purse)  v.  Arm- 

ency  being  known  at  the  time  by  strong,    37     Mich.    3'26;    Matson    v. 

the  purchaser:  it  was  held  that  the  Melchor,    42    Mich.     477;     Muir    v," 

creditors  of  the  insolvent  could  have  Ho.lges,  116  Fed.   912,  where  a  wid- 

their  debts  satisfied  out  of  the  sur-  ows  share  of  rents  and    profits  in 

plusafier  deducting  the  considera-  lands   in    which    she    had   right   of 

tion  actually   paid;   Bij^elow  v.   Ay-  dower  were    held  liable;  Fairbanks 

rault,    46    Barb.     14::!;    Brew.ster    v.  v.  Belknap,  135  Mass.  179;  Dimond  v. 

Power.    10    Paige,  561.      In   Piatt  v.  Rogers,  208  111.  464,  67  N.  E.  908. 
Judson.  3  Blackf.  (Ind.)  335.   it  was        -*  Donovan    v.  Finn,  Hopk.  Ch.  (N. 

held  that  where  lands  weresold  upon  Y.   59.75.     The  court  iu  its  opinion 


§  488.]  KEMEDIES   FOR    ENFOKCEMENT   OF    LIENS,  ETC.  767 

The  rule  is  universal  that  a  creditor  cannot  invoke  the  aid 
of  the  equity  court  until  he  has  exhausted  his  remedy  at  law; 
these  facts,  therefore,  must  appear  in  the  bill  of  complaint  and 
be  proven  at  the  hearing.  It  therefore  follows  that  until  a 
judgment  is  obtained,  an  execution  issued  and  levied,  and  a 
return  of  the  execution  by  the  officer  nulla  hona^  the  action 
cannot  be  sustained,  for  if  the  debtor  has  available  assets  or 
property  subject  to  execution,  they  can  be  levied  upon  and  sold 
to  satisfy  the  indebtedness;  he  has  a  plain  and  adequate  rem- 
edy at  law,  and  therefore  cannot  sustain  an  equity  action. 
And  so  no  creditor  will  be  permitted  to  seek  relief  out  of 
equitable  interests  where  he  can  obtain  it  by  legal  process.^ 
This  doctrine  is  universal.- 

The  rule  is  very  tersely  stated  and  its  universal  application 
mentioned  by  the  supreme  court  of  Ohio  in  an  early  case.  The 
court  say:  "In  all  cases  where  application  is  made  for  the 
extraordinary  interposition  of  a  court  of  chancery,  in  granting 
relief  the  first  inquiry  which  presents  itself  is,  whether  the 
complainant  had  plain,  complete  and  adequate  remedy  at  law. 
If  he  has  such  remedy,  he  must  seek  it  through  the  courts  at 
law.     It  is  not  sufficient  for  him  to  show  that  he  is  entitled  to 

further  said:  "It  is  apparent  that  tion  sued  out  on  such  judgment;  and 
this  case  does  not  belong  to  any  gen-  3d,  a  return  of  the  execution  un- 
eral  head  of  equitable  jurisdiction,  satisfied  in  whole  or  in  part.  Unless 
such  as  frauds,  trusts,  accidents,  these  facts  appear  affirmatively  in 
mistakes,  accounts  or  the  specific  the  bill,  the  court  has  no  jurisdic- 
performance  of  contracts.  Here  is  tion  of  the  case.  The  complainant 
neither  fraud,  nor  trust,  nor  acci-  must  show  he  has  in  good  faith  ex- 
dent,  nor  any  other  ingredient  of  hausted  his  remedy  at  law,  without 
equitable  jurisdiction.  It  is  tiie  producing  a  satisfaction  of  his  debt, 
simple  case  of  two  debtors  and  two  All  the  legislature  intended,  by  the 
creditors,  of  whom  one  is  both  debtor  statute  giving  jurisidiction  to  this 
and  creditor;  a  case  in  which  the  court  in  this  class  of  cases,  was  to 
rights  and  the  remedies  of  the  re-  give  the  creditor  a  remedy  in  this 
spective  parties  have  hitherto  been  court,  after  he  had  exhausted  his 
enforced  exclusively  in  the  courts  of  remedy  at  law,  where  tl»e  debtor  had 
law."  choses  in  action,  or  other  pro|)erty, 
1  Steward  v.  Stevens,  Harr.  Ch.  which  an  execution  could  not  reach, 
(Mich.)  169.  In  Smith  v.  Thompson,  and  wliich  ought,  in  justice  and 
Walk.  Ch.  (Mich.)  1,  3,  it  was  said:  equity,  to  be  applied  by  him  in  pay- 
"A  judjj;ment  creditor  who  files  a  ment  of  the  judgment." 
bill  in  this  court,  to  have  his  judg-  ^For  collection  of  cases  from 
ment  satisfied  out  of  choses  in  courts  of  different  states  see  5  Ency. 
action  belonging  to  the  debtor,  must  of  PI.  &  Pr.,  p.  4G1. 
show,  list,  a  judgment;  -'d,  an  execu- 


768  KEMEDIES    FOR    ENFORCEMENT    OF    LIENS,  ETC.  [§  489. 

redress;  he  must  show  that  he  is  entitled  to  it  in  the  manner 
and  in  the  court  in  which  he  seeks  to  obtain  it."^  The  reason 
of  the  rule  requiring  the  creditor  to  first  obtain  a  judgment 
at  law  is  further  found  in  the  necessity  that  the  claim  of  the 
cn^ditor  sliould  be  ascertained  and  fixed,  for  otherwise  the 
d-el)tor  and  those  concerned  in  the  transaction  might  be  in- 
volved in  oppressive  liti^ration  in  defending  their  property 
against  the  actions  of  persons  who  in  the  end  might  be  found 
to  have  no  valid  claim. 

§  489.  The  judgment  —  The  execution  and  return. —  The 
general  rule  is  that  the  judgment  upon  which  the  action  is 
based  must  be  of  a  court  of  general  jurisdiction,  for  the  rea- 
son, among  others,  that  the  execution  issued  upon  it  can  be 
levied  upon  all  or  any  kind  of  property  the  defendant  may 
have,  real  estate  as  well  as  personalty;  for  if  the  defendant 
has  property  from  which  the  judgment  can  be  satisfied,  either 
real  or  personal,  the  plaintiff  has  a  complete  remedy  at  law; 
and  until  he  has  exhausted  such  remedy  he  will  not  be  per- 
mitted to  come  into  a  court  of  chancery  with  a  judgment  cred- 
itor's bill.  The  effort  to  collect  bj'  execution  must  be  made, 
and  until  it  is  returned  nulla  hona  the  action  cannot  be  sus- 
tained. In  some  jurisdictions  it  has  been  held  that  the  judg- 
ment of  a  justice  court  would  be  sufficient  upon  which  to  sus- 
tain the  action,  but  these  holdings  are  more  or  less  influenced 
by  statutes.^ 

1  Bustard  v.  Dabney,  Adm'r,4  0hio,  have  lield  the  judgment  creditor  in 
68,  71.  In  Thayer  v.  Swift,  Harr.  every  adjudged  case,  before  admin- 
Ch.  (Mich.)  430,  the  court  say:  "Tlie  istering  this  harsh  remedy  of  de- 
foundation  of  the  jurisdiction  of  this  priving  the  debtor  absolutely  of  all 
class  of  cases  is,  that  the  judgment  control  over  every  part  and  portion 
creditor  shall  have  fully  exhausted  of  his  property,  to  bring  himself 
his  remedy  at  law.  It  has  been  re-  strictly  and  rigidly  witiiin  this  rule, 
peateilly  held  that  the  court  will  not  No  case  can  be  found  where  this 
retain  a  bill  as  a  judgment  creditor's  remedy  has  been  afforded  without  a 
bill  merely,  filed  before  the  return  strict  compliance  with  all  the  forms, 
day  of  the  execution.  In  the  ab-  Wliat  is  the  reason  of  the  rule?  It 
sence  of  any  authority  or  dicta  upon  is  that  a  judgment  debtor  shall  not 
the  subject,  I  should  have  as  little  be  harassed  with  a  suit  in  chancery- 
doubt  ujjon  a  case  where  the  execu-  until  the  creditor  has  availed  him- 
tion  was  actually  returned  before  self  of  all  his  common-law  rights  to 
tlie  return  day,  although  the  bill  was  collect  his  judgment."  Brown  v. 
not  filed  until  after  the  return  day  BarUer,  74  N.  Y.  S.  48. 
had    elapsed.     Courts    of   chancery        2  Lore  v.  Getsinger,  7  N.  J.  Eq.  191, 


§  489. J  REMEDIES    FOR    ENFORCEMENT    OF    LIENS,  ETC.  769 

In  those  jurisdictions  where  the  basis  of  the  procedure  de- 
pends upon  the  fact  that  the  creditor  has  exhausted  his  remedy 
at  Uivv,  it  is  difficult  to  see  how  a  judgment  of  a  justice  court, 
upon  which  an  execution  leviable  upon  the  real  estate  of  the 
del)tor  cannot  be  obtained,  would  su])port  a  creditor's  bill,  for 
it  is  evident  if  there  is  any  property  that  can  be  reached  by 
execution,  either  real  or  personal,  that  will  satisfy  the  judg- 
ment, the  bill  cannot  be  sustained.  A  justice  judgment  might 
be  the  basis  of  the  action  if  a  transcript  of  the  judgment  were 
filed  with  the  court  of  general  jurisiliction  and  an  exf^cution 
issued  from  that  court,  for  u})on  such  an  execution  real  estate 
could  be  reached.  The  mode  of  obtaining  executions  from  courts 
of  general  jurisdiction  upon  judgments  of  inferior  courts  is  en- 
tirely statutory.^ 

The  judgment  must  have  been  obtained  and  proceedings 
had  to  exhaust  the  legal  remedy  before  the  bill  is  filed;  that 

where   tlie  action  was  based  upon  ments  in  the  county  clerk's  office, 

tiiree   justice   court  judgments  ob-  and  have  taken  out  executions  there, 

tained    by   three  several   complain-  so  as  to  reach  the  real  as  well  as  the 

ants,  the  sum  of  which  amounted  to  personal  property  of  the  defendant, 


yS;  the  court  held  that  it  would  if  lie  had  any  in  the  county.  The 
entertain  the  bill,  but  it  seems  in  statute  does  not  authorize  the  filing 
that  case  that  there  was  a  statute  in  of  a  creditor's  bill  upon  the  return 
existence  which  accounted  for  the  of  an  execution  unsatisiied,  which 
decision.  In  Balleutine  v.  Beall,  3  execution  has  been  issued  only 
Scam.  (111.)  203,  and  in  Steere  v.  against  a  part  of  the  defendant's 
Hoagland,  89  111.  264.  and  later  in  property,  where  the  complainants 
Thompson  v.  Yates,  61  111.  App.  263,  might  have  taken  out  their  execu- 
the  court  of  Illinois  held  that  a  jus-  tions  against  the  whole,  if  they  had 
tice  court  judgment  would  support  filed  the  transcripts  of  their  judg- 
the  bill  when  it  was  not  required  to  ments  with  the  county  clerk."  Pat- 
create  a  lien  upon  real  estate.  terson  v.  Lynde,  112  111.  196;  Ballin 

UnDixv.  Briggs,9PaigeCh,  (N.Y.)  v.  Lace  Importing  Co.,  78  Wis.  404, 

595,  596,  where  the  action  was  based  10   L.    R    A.   742;   Earle   v.   Circuit 

upon  a  judgment  and  execution  of  a  Judge.  93  Mich.  285.     In  Vanderpool 

justice  court,  the  conrt  say:  "It  is  a  v.  Notley,  71  Mich.  422,  39  N.  W.  574, 

fatal  oiijection  to  this  suit,  however,  and  Brock  v.   Rich,  76  Mich.  644,  it 

that    the    complainants    have     not  was  held  that  a  judgment  creditor's 

exiiausted    their    remedies    at    law  bill  to  reach  non-leviable  assets  can- 

against  the  property  of  the  defend-  not  be  file<l  until  judgment  obtained 

ant.     The  executions  which  were  is-  and  an   execution    issued   returned 

sued  by  the  ju.'^tice  and  directed  to  a  unsatisfied;  that  a  simple  demand  of 

constable  were  against  his  personal  payme.it  is  not  enough  to  support 

property  merely.     And  to  complete  such    a    bill.      National    Bank     v. 

the  remedy  the  complainants  should  D wight,  83  Mich.  189. 
have   docketed  their  several  judg- 
49 


770  REMEDIES    FOR  ENFORCEMENT   OF    LIENS,  ETC.  [^  480. 

is,  the  judgment  must  be  obtained  and  the  execution  must 
have  been  issued  and  returned  "  no  goods  found,"  for  this 
action  is  necessary  in  order  to  exhaust  the  remedy  at  law;  and 
until  the  remedy  at  law  has  been  exhausted  the  action  cnnnot 
be  commenced.  These  facts  must  appear  by  the  records  of 
the  court  and  the  return  of  the  officer.  It  has  been  said  that 
"a  court  of  equity  exercises  its  jurisdiction  in  favor  of  a  judg- 
ment creditor  only  when  the  remed}'  afforded  him  at  law  is 
ineffectual  to  reach  the  property  of  the  debtor,  or  the  enlorce- 
ment  of  the  legal  remedy  is  obstructed  by  some  incumbrance 
upon  the  debtor's  property,  or  some  fraudulent  transfer  of  it. 
In  the  first  case  the  court,  when  its  aid  is  invoked,  looks  only 
to  the  execution  and  the  return  of  the  officer  to  whom  the  ex- 
ecution was  directed.  The  execution  shows  that  the  remedy 
afforded  at  law  has  been  pursued,  and,  of  course,  is  the  highest 
evidence  of  the  fact.  The  return  shows  whether  the  remedy 
has  proved  effectual  or  not,  and,  from  the  embarrassments 
which  would  attend  any  other  rule,  the  return  is  held  conclu- 
sive. The  court  will  not  entertain  inquiries  as  to  the  diligence 
of  the  officer  in  endeavoring  to  find  property  upon  which  to 
levy.  If  the  return  be  false,  the  law  furnishes  to  the  injured 
party  ample  remedy."' 

The  remedy  at  law  cannot  be  said  to  have  been  exhausted 
until  the  execution  has  run  its  entire  time.  And  so  it  has  been 
held  that  a  return  of  the  execution  unsatisfied  before  the  expi- 
ration of  the  last  day,  namely,  the  return  day,  would  not  be 
sufficient  to  support  the  bill,  for  the  reason  that  the  judgment 

1  Jones  V.  Green,  68  U.  S.  (1  Wall.)  Fechheimer  v.  Hollander.  17  D.  C. 

3m      The   court   further  say:    "In  512.  1  L.  R.  A.  368,  where  it  is  held 

the  s  cond  case  the  equitable  relief  that  a  return  nulla  bona  is  conclu- 

soiiffht  rests  upon  the  fact  that  the  sive  evidence  that  the  debtor   has 

execution   has  issued  and  a  specific  no  other    property;    M'Dermutt   v. 

lien    has   been    acquired    upon  the  Strong,   4    Johns.   Ch.    (N.   Y.)   688; 

prop  Tty  of  the  debtor  by  its  levy,  Beck   v.  Buidett,  1  Paige  Ch.  (N.  Y.) 

but  that  tlie  obstruction  interposed  306;  Halbert  v.   Grant.  4  T.  B.  Mon. 

prevents  a  sale  of  the  property  at  a  (Ky.)  5bl ;  Powell  v.  Howell,  63  N.  C. 

fair  valuation.     It  is  to  remove  the  283;    Lawton    v.   Levy,   2   Eilvv.  Ch. 

obstruction,    and    thus    enabie   the  200;    Pacific   Bank    v.    Robinson,  57 

creditor  to  obtain  a  full  price  for  the  Cal.  5.0.   40   Am.   Rep.    124;  and  see 

pr.  perty,  that  the  suit  is  brought."  note,    Howell    v.    Cooper,   37    Barb. 

The    facts  differentiating    the   two  (N,  Y.)  586, 
actions  are    discussed,  post,   §  491; 


4h9. 


REMEDIES    FOR    ENFORCEMENT   OF    LIENS,  ETC. 


771 


debtor  is  entitled  to  the  full  time  or  life  of  the  execution  within 
which  to  pay  the  indebtedness,  and  the  officer  is  bound  to  con- 
tinue his  search  for  the  property  to  satisfy  it  until  the  execu- 
tion is  returnable.^ 


1  Tliayer  v.  Swift,  Harr.  Ch.  (Mich.) 
43U;  Vanderpool  v.  Notley,  71  Mich. 
422.  428.  89  N.  W.  57 i.  In  Hughs  v. 
Link  Belt  Machine  Co.,  9::!  111.  App. 
32o,  6-^  N.  E.  186,  it  whs  lield  that  the 
reason  for  requiring;  a  judgment  issu- 
ing and  retuining  execution  as  a 
foundation  for  the  bill  is  to  sliow  that 
acourtof  law  is  incompetent  to  reach 
the  property  of  tlie  defendant,  and 
when  tlie  return  of  the  officer  is  for 
some  other  reason  than  his  inrtbiiity 
to  find  proi)erty  on  which  to  levy, 
such  return  will  be  insufficient. 
Moore  v.  Omaha  Life  Ins.  Co.,  62  Neb. 
497,  87  N.  W.  321;  Isham  v.  Sien- 
knecht  (Tenn.  Ch.,  1900),  59  S.  W.  779. 
See  cases  cited  ante,  g  388.  subd.  1, 
note  3.  Krolik  v.  Koot,  63  Mich.  562; 
Jenks  V.  Horton,  114  Mich.  48;  McCoy 
V.  Connecticut  Fire  Ins.  Co.,  87  Mo. 
App.  73.  But  in  some  jurisdictions 
it  has  been  held  that  where  the  sheriff 
has  taken  all  proper  steps  to  make 
the  execution  from  the  proi)erty  of 
the  defendant,  has  made  demands 
without  result  and  has  been  unable 
to  find  property  to  levy  upon,  he  may 
return  the  execution  before  the  time 
of  its  expiration,  and  a  creditor's  bill 
will  lie  although  the  return  was 
requested  by  the  attorney  for  the 
creditor.  Howe  v.  Babcock,  72  III. 
App.  68;  Clark  v.  Coal.  etc.  Co.,  6 
App.  D.  C.  437.  In  Suydam  v.  North- 
western Ins.  Co.,  51  Pa.  St.  394,  398, 
it  was  said:  "It  is  necessary  to  show 
that  the  complainants  are  remediless 
at  law.  It  is  quite  possible  that  a 
judgment  debtor  be  insolvent,  and 
yet  an  exei-ution  against  him  may  re- 
sult in  eiilorcing  the  payment  of  the 
single  del)t  in  jud^^ment.  The  ordi- 
nary meaning  of  the  term  'insolv- 
ency' is  the  state  of  a  person  who  has 


not  propertysufficient  for  the  full  pay- 
ment of  his  debts.  Under  the  English 
bankrupt  laws  a  trader  is  in  insolv- 
ent circumstances  who  is  not  in  a 
condition  to  pay  his  debts  in  the 
usual  and  ordinary  course  of  trade 
and  business.  Shore  v.  Lucas.  3  Dowl. 
&  Ry.  218.  And  such  is  the  com- 
mon understanding  of  the  term  'in- 
solvent.' BiiJdecomb  v.  Bond.  4  Ad. 
&  E.  332.  A  general  averment  of  in- 
solvency may  therefore  be  made 
truthfully  against  a  cor|)oration  de- 
fendant, while  a  judgment  creditor 
complainant  has  a  speedy  and  ade- 
quate remedy  at  law  tor  the  collec- 
tion of  the  debt.  Hence  it  has  be- 
come an  established  rule  that  when 
a  judgment  creditor  seeks  the  aid  of 
a  court  of  equity  to  enforce  the  pay- 
ment of  his  judgment,  he  must  aver 
that  afi.fa.  has  been  issued  and  that 
it  has  been  returned  unproductiva 
And  the  rule  is  not  confined  in  its 
operation  to  bills  of  discovery,  as  is 
apparent  from  its  reason.  That  it  is  a 
settled  rule  all  the  authorities  agree. 
One  of  the  earlier  is  Angle  v.  Draper, 
1  Vern.  Cas.  371.  There  the  defend- 
ant, who  had  the  goods  in  his  hands 
that  the  complainant  sought  to  have 
applied  to  the  payment  of  his  judg- 
ment against  the  other  defendant, 
seemed  to  have  obtained  them  in  a 
fraudulent  manner  under  a  pretense 
of  a  debt  due  himself.  Yet  his  de- 
murrer was  allowed  because  the  bill 
did  not  allege  that  an  execution  had 
been  taken  out.  In  Hendricks  v. 
Robinson,  2  Johns.  Ch.  283,  the  chan- 
cehor,  while  asserting  that  the  court 
wou.d  lend  its  aid  to  enforce  a  judg- 
ment at  law  by  compelling  discovery 
and  account  either  as  against  the 
debtor  or  as  against  any  third  person 


172 


REMEDIES    FOR    ENFORCEMENT   OF    LIENS,  ETC.  [§  489. 


If  the  judgment  against  the  debtor  is  a  foreign  one.  The  re- 
quirement that  the  creditor  must  exhaust  his  legal  remedy  is 
determinative  as  to  whether  a  foreign  judgment  is  sutticient  to 
support  a  creditor's  bill.  The  cretlitor  who  has  obtained  a 
judgment  and  issued  an  execution  in  another  state  or  foreign 
country  cannot  be  said  to  have  exhausted  his  remedy  in  the 
state  where  he  seeks  to  question  the  disposition  of  the  debtor's 
property;  such  a  judgment  is  not  a  hen  on  the  property  of  the 
del)tor  in  that  state.  The  foreign  judgment  may  afford  evi- 
dence for  the  obtaining  of  a  judgment  in  the  jurisdiction  asked 
to  entertain  the  bill  of  complaint,  and  if  such  a  judgment  is  ob- 
tained and  an  execution  issued,  property  may  be  levied  upon 
and  the  judgment  satisfied.  AVhile  this  opportunit}'  remains, 
while  there  is  a  jirobability  or  even  possibility  of  thus  satisfy- 
ing the  claim,  the  court  of  equity  will  not  interfere.  The 
plaintiff  in  such  case  would  stand  before  the  court  as  a  mere 
creditor  at  large,  for  the  judgment  obtained  in  the  foreign 
court  would  not  be  recognized  in  the  domestic  court. 

The  rule  is  very  clearly  stated  in  National  Tube  Worhs  Co. 
V.  Ballon.'^    The  court  say:  "Where  it  is  sought  by  equitable 


who  rnay  have  possessed  himself  of 
the  debtor's  property  and  placed  it 
beyond  the  reach  of  tlie  execution  at 
law,  declared  that  the  preliminary 
step  required  is  that  the  judgment 
creditor  should  have  made  an  exper- 
iment at  law  by  actually  suing  out 
an  execution.  It  need  hardly  be  said 
tliat  if  this  is  an  indispensable  pre- 
liminary to  equitable  interference, 
it  must  be  averred  in  the  bill.  Brin- 
kerhoff  v.  Brown.  4  Johns.  Ch.  671, 
asserts  the  same  doctrine.  In  this 
case  most  of  the  English  decisions 
were  reviewed,  and  it  was  said  the 
later  ones  are  peculiarly  forcible, 
since  they  require  a  previous  execu- 
tion at  law,  even  in  cases  in  which 
the  creditor  is  pursuing  a  mere  right 
in  equity,  not  tangible  at  law,  or 
vendible  under  a ^  fa.  In  McElwain 
V.  Willis.  Yardly  et  al,  9  Wend.  548, 
it  was  decided  that  to  entitle  a  judg- 
ment creditor  at  law  to  the  aid  of  a 


court  of  chancery,  to  obtain  satis- 
faction of  his  judgment  again.st  the 
defendant,  out  of  property  not  liable 
to  be  levied  upon  by  execution,  he 
must  show  not  only  an  execution 
issued,  but  returned  '■nulla  bona,* 
and  that  no  state  of  facts  will  .ex- 
cuse such  return.  Reference  may 
also  be  made  to  Beck  v.  Burdell,  1 
Paige.  308.  These  cases  and  a  mul- 
titude of  others  that  are  at  hand  and 
that  might  be  cited  establish  the 
rule  that  a  court  of  equity  will  not 
entertain  a  bill  to  enable  a  judg- 
ment creditor  to  obtain  payment  of 
the  debt,  unless  the  bill  show,  by  a 
retur'n  of  nulla  bona  to  an  execu- 
tion issued  on  the  judgment,  that 
all  remedy  at  law  has  been  ex- 
hausted." 

1 146  U.  S.  517,  523;  Buchanan,  etc. 
V.  Marsh,  17  Iowa,  491;  Crim  v. 
Walker,  79  Mo.  335;  Davis  v.  Dean, 
26  N.  J.  Eq.  436;  Patterson  v.  Lynde^ 


§  490.]  REMEDIES    FOR    ENFORCEMENT   OF    LIENS,  ETO.  773 

process  to  reach  equitable  interests  of  a  debtor,  the  bill,  unless 
otherwise  provided  by  statute,  must  set  forth  a  jud^rment  in 
the  jurisdiction  where  the  suit  in  equity  is  brought,  the  issuing 
of  an  execution  thereon  and  its  return  unsatisfied,  or  must 
make  allegations  showing  that  it  is  impossible  to  obtain  such 
a  judgment  in  any  court  within  such  jurisuiction." 

When  judgments  of  federal  courts  sufficient  in  state  courts  and 
of  state  courts  in  federal  courts.  It  is  generallj^  conceded  that 
the  judgment  of  the  state  court  will  be  recognized  as  sufficient 
by  the  federal  court  sitting  within  the  state  where  the  judg- 
ment was  rendered.^  And  the  state  courts  will  proceed  upon 
the  judgment  of  the  federal  court  sitting  within  the  state,  for 
it  is  said  that  judgments  of  the  federal  courts  sitting  within 
the  state  are  as  satisfactory  as  the  jutlgment  of  the  state  court, 
for  if  an  execution  from  that  court  fails  to  yield  to  the  plaintifif 
his  judgment  debt  it  is  as  entire  a  failure  as  if  an  execution 
had  issued  from  the  state  cout-t.^  The  fact  to  be  determined 
is,  has  the  complainant  exhausted  his  remedy  at  law  ?  Is  there 
sufficient  and  competent  evidence  of  that  fact  ?  Where  decrees 
in  chancery  for  a  specific  sum  of  money  are  enforceable  by 
execution  they  may  be  the  basis  of  judgment  creditors'  bills 
the  same  as  judgments  at  law.* 

§  4tlO.  Objections  to  the  regularity  of  the  judgment.— 
If  the  judgment  appears  to  be  regular  upon  its  face  and  prop- 
erly entered  upon  the  records  of  the  court,  the  court  will 
not  regard  an  objection  to  the  manner  of  its  having  been 
obtained,  unless  it  appears  that  the  court  which  rendered  it 
bad  no  jurisdiction  for  the  reason  that  the  court  rendering  the 

112   III.    196;  Claflin  v.  McDermott,  Walserv.Seligman,21Blatchf.(U.  S.) 

12   Fed.    375.     But   such  judgment  180,  13  Fed.  415. 

has  been  recognized,  etc.    See  Earle  *  Vanderveer  v.  Striker,  8  N.  J.  Eq. 

V.   Grover,   92  Mich.  285.     And  for  185;  Peterson  v.  Gatling,  107  Iowa, 

statutory  reasons.    Shickle  v.  Watts,  306,  309;  Baliin  v.  Loeb,  78  Wis.  404. 

94  Mo.  419.  'Clarkson  v.  De  Peyster,  3  Paige 

1  Buckeye  Machine  Co.  v.  Donan,  Ch.  (N.  Y.)  320,  where  it  was  held 

etc  Co.,  47  Fed.  6.     And  where  the  that  a  creditor,  by  a  decree  in  chan- 

judgnient  is  rendered  in  a  court  out-  eery  after  an  execution  issued  and 

side  ot  the  state  in  which  the  federal  returned  unsatisfied,  is  entitled  to 

court  is  sitting  and  the  creditor's  bill  the  same  relief  against  the  equitable 

is  tiled  in  the  federal  court,  see  Tube  interests  and  property  of  his  debtor 

Works  Ca  v.  Ballon,  146  U.  S.  517;  as  a  creditor  by  judgment  at  law. 

Winslow  V.  Leland,  128  111.  304. 


774  REMEDIES    FOE    ENFOKCEMENT    OF    LIENS,  ETC.  [  >j  490. 

judgment  is  the  proper  tribunal  to  determine  such  questions. 
The  equity  court  will  not  allow  the  debtor  to  make  a  defense 
in  that  court  which  should  have  been  made  upon  the  trial  of 
the  cause  or  in  the  court  where  the  judgment  was  obtained. 
Equity  will,  in  a  proper  case,  look  behind  a  judgment  at  law 
in  order  to  do  equity  between  the  parties  to  it, —  that  is,  where 
the  court  has  the  same  parties  before  it;  but  in  a  suit  upon  a 
creditor's  bill  where  the  claim  has  been  established  by  a  court 
of  law,  and  the  object  is  to  reach  the  debtor's  property  which 
has  been  fraudulently  conveyed,  the  equity  court  will  not 
allow  a  retrial  of  the  questions  involved  in  the  suit  at  law.^ 
Where  it  was  attempted  to  attack  the  judgment  at  law  lor  the 
reason  that  the  debtors  were  overreached  and  thus  induced  to 
contract  the  indebtedness  by  false  representations  made  by 
some  of  the  complainants,  claiming  that  for  that  reason  the 
judgment  was  not  equitably  due,  the  court  held  that  such 
evidence  could  not  be  admitted  for  the  reason  that  the  court 
in  which  the  judgment  was  obtained  could  alone  try  the  ques- 
tion.^ 

It  has  been  said  that  "  the  court  rendering  the  judgment  is 
best  able  to  determine  what  is  irregular  and  how  far  its  pro- 
cess has  been  abused;  and  if  a  defendant  wishes  to  avoid  the 
effect  of  a  judgment  improperly  rendered  against  him,  the 
application  should  be  made  to  the  court  of  law.  .  .  .  If  he 
does  not  take  this  course,  but  suffers  the  judgment  to  stand, 
and  at  the  same  time  it  appears  by  the  record  to  be  a  judgment 
against  the  party  who  is  brought  into  this  court,  I  am  inclined 
to  think  it  is  not  the  business  of  this  court  to  inquire  beyond 
the  record  into  the  means  by  which  it  was  obtained."^  But 
where  the  court  of  law  fails  to  obtain  jurisdiction  of  the  suit 
and  the  judgment  is  rendered  by  the  court  without  authority, 
it  must  be  held  to  be  a  nullity  and  cannot  be  the  basis  of  a  judg- 
ment creditor's  bill     As  where  there  is  no  service  of  process 

iConover  V.  JeflFrey.26N.  J.  Eq.  36;  Matz.  86  Wis.  370,  the  court  say: 
Decker  v.  Decker,  108  N.  Y.  128.  "The  judgment  in  favorof  theplaint- 
2Sawyer  V.  Moyer,  109  111.  461;  ifif  against  the  defendant  upon  which 
Bowman  v.  Wilson,  61  III.  App.  73.  the  action  is  based  is  conclusive  as  to 
3  Hone  V.  Woolsey,  2  Edw,  Ch.  (N.  the  validity  and  justice  of  the  plainfc- 
Y.j289,290;  Grazebrook  V.  M'Creedie,  itf's  claim,  and  it  could  not  be  ina- 
9  Wend.  (N.  Y.)  437;  Swihart  v.  peached  in  this  action."  Carpenter 
Shaum,  24  Ohio  St.  432.    In  Faber  v.  v.  Osburn,  102  N.  Y.  552. 


§  491.]  KKMEDIES    FOR    ENFORCEMENT    OF    LIENS,  ETC.  775 

upon  the  defendant  and  no  appearance  by  him  in  the  cause, 
the  court  having  no  jurisdiction  over  the  person  of  the  defend- 
dant  would  have  no  authority  to  render  the  judgment  and  it 
would  be  void.*  So  where  proceedings  in  the  court  of  law  have 
been  stayed  pending  an  appeal,  the  judgment  will  not  support 
a  creditor's  bill;  but  where  from  the  allegations  in  the  bill  it 
does  not  appear  that  the  judgment  is  regular,  the  court  on  ap- 
plication and  sufficient  showing  will  stay  the  proceedings  until 
an  application  can  be  made,  and  the  question  of  regularity 
raised  in  the  law  court,  if  it  appears  that  it  may  be  determined 
in  that  court.^  Where  after  judgment  at  law  and  an  execution 
returned  unsatisfied  the  creditor  had  filed  his  bill  and  the  de- 
fendant debtor  was  subsequently  permitted  by  the  court  of 
law  to  come  in  and  defend  in  the  law  case  in  which  the  judg- 
ment was  rendered,  it  was  held  to  be  the  proper  practice  to 
stay  proceedings  in  the  chancery  court  until  the  suit  at  law 
could  be  finally  determined  upon  the  new  trial.'' 

§41)1.  (2)  Bills  in  aid  of  execution.— The  bill  in  aid  of 
execution  is  what  its  name  implies,  a  bill  to  aid  the  collection 
of  the  amount  of  the  judgment  by  the  writ  of  execution 
issued  upon  it.  It  differs  from  a  judgment  creditor's  bill  filed 
to  discover  and  reach  personal  assets,  choses  in  action,  or  equi- 
table interests  of  the  defendant,  considered  in  the  preceding 
sections,  principally  in  this:  that  the  bill  in  aid  of  execution 
proceeds  upon  the  theory  of  establishing  and  legalizing  a  lien, 

1  Tyler  v.  Peatt,  30  Mich.  63;  Nu-  there  18  enough  upon  the  face  of  the 

gent   V.    Nugent,   70  Mich.   52.      In  papers  to  show  that  either  the  judg- 

Griffin  v.  McGavin,  117  Mich.  373,  it  meut  or  execution  is  absolutely  void 

was  held  that  a  mere  irregularity  in  they  must  be  respected  as  valid,  per- 

the  obtainingof  thejudgmentwhich  mitted  the  equity  suit  to  be  delayed 

would  not  render  the  judgment  ab-  in  order  that  the  question  as  to  the 

solutely  void  will  not  be  l>eld  to  be  regularity  of  the  judgment  m   the 

an  objection  to  the  filing  of  thecred-  court  of  low  might  be  deieimined. 

iter's  bill  upon  the  judgment  ren-  Sandfonl   v.   Sinclair,   8   Paige    Ch. 

dered.  (N.  Y.)  373. 

'i  In  Bank  of  Wooster  v.  Spencer.  1        3  Drew  v,  Dwyer,  1  Barb.  Ch.  (N.  Y.) 

Clark  Ch.  (N.  Y.,  386,  where  it  ap-  101.    See  Bank  v.  Meach,  7  Paige  Ch. 

peared  from   the  bill  that  the  pro-  448,  where  a  judgment  as  to  one  of 

ceedings  might  have  been  irregular  several  joint  defendants  was  set  aside 

in  obtaining  the  judgment  at  law,  and  it  was  held  that  the  other  de 

and  there  was  reasonable  ground  to  fendants  might  proceed  in  the  chan- 

Buspect  such  irre-ularity.  the  ohan-  cerv  casa 
cellor,  after  observing  that  unles* 


776  REMEDIES    FOK    ENFORCEMEMT   OF    LIENS,  ETC.  [§  401. 

which  complainant  alleges  he  has  by  reason  of  the  levy  of  an 
execution,  by  setting  aside  and  clearing  the  title  of  the  prop- 
erty of  all  illegal  conveyance,  incumbrance  or  obstructions 
which  the  defendant  has  placed  upon  it  to  protect  it  from  levy 
and  sale  upon  an  execution  to  satisfy  the  judgments  of  his 
creditors.  The  bill  in  aid  of  execution  is  aimed  at  detendant's 
legal  title  and  not  merely  at  his  equitable  interests.' 

One  of  the  principal  requisites  to  the  filing  of  a  bill  in  aid  of 
execution  to  set  aside  a  conveyance  or  incumbrance  as  fraudu- 
lent is  the  acquiring  of  a  lien  upon  the  property  sought  to  be 
cleared  of  the  obstruction  or  incumbrance.  This  is  generally 
conceded  to  be  obtained  by  a  levy  upon  the  property  of  an 
execution  issued  upon  the  judgment  at  law.  The  proceeding 
is  upon  the  theory  that  the  complainant,  having  levied  his  writ 
of  execution  from  the  law  court,  has  obtained  such  an  interest 
or  li('n  upon  the  property  as  gives  him  the  right  to  be  heard  in 
theequity  court  upon  his  alleged  case  of  fraudulent  incumbrance 
or  obstruction  of  the  title  by  the  judgment  debtor.  And  so  it 
follows  that  the  execution  in  this  class  of  cases  should  not  be 
returned  unsatisfied,  as  is  required  in  creditors'  bills  seeking  to 
discover  and  subject  to  the  payment  of  the  debt  choses  in  ac- 
tion, but  should  be  merely  levied  upon  the  property  of  the 
defendant,  thus  establishing  his  lien.  This  levy  should  be  made 
before  the  bill  is  filed.^ 

In  some  jurisdictions  it  has  been  held  that  there  are  cases 
which  do  not  require  the  issumg  of  an  execution;  as  where 
the  debtor  is  insolvent  and  the  allegations  of  the  bill  show 

iln  Beck  V,  Burdett,  1   Paige  Ch.  sale  on  the  execution.    In  the  other, 

305,  where  a  bill  was  filed  by  a  judg-  the  plaintiff  comes  here  to  obtain 

ment  creditor  to  set  aside  a  fraudu-  satisfaction  of  his  debt  out  of  prop>- 

lent    assignment    of    property,    the  erty  of  the  defendant,  which  cannot 

chancellor    said:    "There    are    two  be   reached   by  execution   of  law." 

classes  of  cases  where  a  plaintiff  is  Clarkson  v.  De  Peyster,  3  Paige  Ch. 

permitted  to  come  into  this  court  for  (N.  Y.)  320;  Beith  v.  Porter,  119  Mich, 

relief  after  he  lias  proceeded  to  judg-  365,  78  N.  W.  336.     Merely  contract 

ment  and  execution  at  law  without  creditors  cannot  sustain  the  action, 

obtaining  satisfaction  of  his  debt.  Harrison  v.  Farmers',  etc.  Co.,  36  CL 

In  one  case  the  issuing  of  the  execu-  C.  A.  443,  94  Fed.  728;  Nordlinger  v. 

tion  gives  to  the  plaintiff  a  lien  upon  Ostatag.  66  111.  App.  671. 

the  property,  but  he  is  compelled  to  2 Gibbons  v.  Pemberton,  101  Mich, 

come  here  for  the  purpose  of  remov-  397;   Campbell  v.  Western  Electric 

ingsome  obstruction,  fraudulently  or  Co.,  113  Mich.  3:^3;  Wilson  v.  Addi- 

inequitably  interposed  to  prevent  a  son,  127  Mich.  6S0. 


§  i91.]  REMEDIES    FOR    ENFORCEMENT    OF    LIENS,  ETC.  T7T 

that  it  would  be  an  idle  ceremony;  or  where  the  debtor  has 
absconded  and  cannot  be  reached.     But   these  holdings  are 
generally  based   upon   some  statute  or  facts  peculiar  to  the 
particular  case,  and  cannot  be  said  to  vary  or  change  the  well- 
settled  general  rule  that  an  execution  must  issue  and  be  levied 
upon  the  debtor's  property.^     In  some  of  the  states  by  statute 
a  judo-ment,  when  obtained,  becomes  a  lien  upon  the  debtors 
property,  and  the  courts  in  those  states  have  generally  held 
that  it  is  not  necessarv  to  levy  an  execution  upon  the  property 
in  order  to  support  a  bill  in  aid  of  execution.     The  reason  of 
the  holding  is  obvious:  it  is  only  necessary  to  create  a  lien  to 
give  to  the  court  of  equity  jurisdiction.^    This  action  should  not 
be  confounded  with  the  action  quia  timet.     Here  the  plaintiff 
has  no  title  to  the  property  he  seeks  to  subject  to  the  payment 
of  the  judgment,  while  in  that  action  he  claims  the  title  and 
seeks  to  set  aside  claims  of  title  which  cloud  his  own.     This 
action  proceeds  upon  the  theory  that  the  complainant  has  a 
den  upon  the  property  for  the  satisfaction  of  his  debt,  while 

C.  C.  A.  334,  92  Fed.  269,  it  was  held 
that  where  a  judgment,  when  ob- 
tained,   becomes   a    lien    upon  the 
debtor's  property,  there  need  be  no 
levy  of  an   execution.     In  Scott  v. 
Neely,   140    U.   S.    106,   Mr.   Justice 
Field  used  the  following  language: 
"  In  all  cases  where  a  court  of  equity 
interferes  to  aid  the  enforcement  of 
a  remedy  at  law,  there  must  be  an 
acknowledged  debt,  or   one  estab- 
lished by  a  judgment  rendered,  ao- 
corapanied  by  a  right  to  the  appro- 
priation of  the  property  of  the  debtor 
for  its  payment,  or,  to  speak  with 
greater  accuracy,  tliere  must  be,  in 
addition  to  such  acknowledged  or 
established  debt,  an  interest  in  the 
property  or  a  lien  thereon  created 
by    contract   or    by    some    distinct 
legal   proceeding."     In    Huntington 
V.  Jones,  73  Conn.  45,  the  action  was 
an  action  of  debt,  where  a  count, 
added  in  the  nature  of  a  creditor's 
bill,  seems  to  be  allowable  under  the 
practice  in  that  state.     Vail  v.  Ham- 
mond, 60  Couu.  374. 


1  In  Sage  v.  Railway  Ck).,  125  U.  S. 
361,  376,  the  languase  of  the  court 
oii-ht  at  first  blush  be  construed  as 
holding  the  issuing  of  an  execution 
unnecessary,  but  it  will  be  noticed 
that    that    case    rests    upon    other 
grounds  peculiar  to  itself,  and  can 
scarcely  be  classed  as  one  holding 
adversely  to  the  rule  stated  in  the 
iext.     In  tliat  case  no  question  was 
jaised  that  there  was  no  execution 
issued;  on  the  contrary,  it  was  con- 
,ceded  by  the  parties  that  it  was  un- 
necessary, and  the  bill  filed  by  the 
complainant  was  for  the  purpose  of 
obtaining  a  receiver  and  in  reality 
io  avoid  a  sale  of  the  property.     In 
City  of  New  Orleans  v.    Fisher,  34 
O.  C.  A.  15.  where  the  bill  sought  to 
reach  an  amount  due  from  the  city 
of  New  Orleans  to  its  school  board, 
which  could  only  be  correctly  ascer- 
tained by  an  accounting,  it  was  held 
that  there  was  no  adequate  remedy 
at  law  and  equity  would  take  juris- 
diction. 
2  In  Schofield  v.  Coal,  etc.  Co.,  34 


778  KEMEDIES    FOR    ENFORCEMENT   OF    LIENS,  ETC.  [§  492. 

quia  timet  is  based  upon  the  theory  that  the  comp]ainant  owns 
the  property  and  has  the  title  to  it.  In  the  one  case  it  is  nec- 
essary to  issue  and  levy  an  execution  upon  the  property  unless 
the  judgment  alone  creates  a  lien,  while  in  the  latter  the  pro- 
ceeding is  upon  the  title  claimed  to  be  already  in  the  complain- 
ant.^ And  so  upon  a  bill  in  aid  of  execution  the  property  levied 
upon  should  not  be  sold  before  the  bill  is  filed.^ 

<^  WVZ.  Sufficiency  of  lien  by  attachment. —  The  authorities 
are  by  no  means  harmonious  as  to  whether  a  lien  by  attach- 
ment will  support  a  creditor's  bill.  It  has  been  said  that  a  de- 
cision either  way  could  be  well  fortified  by  authority.'  So 
generally  is  the  action  and  procedure  governed  by  statute  that 
to  understand  the  reported  cases  it  is  necessary  in  every  case 
to  examine  the  statute  of  the  state.  Statutes,  however,  almost 
without  exception  require  that  the  plaintiff  acquire  some  sort 
of  lien  upon  the  property  as  a  basis  of  jurisdiction  before  hiing 
a  creditor's  bill.  It  seems  to  be  generally  required  that  the 
creditor  reduce  his  claim  to  judgment  so  that  his  demand  can 
be  legally  fixed  and  its  amount  determined,  and  issue  an  exe- 
cution the  levy  of  which  fixes  the  lien  of  the  creditor,  except 
in  those  jurisdictions  where  by  statute  the  judgment  becomes 
a  lien  when  obtained;  but  there  is  a  line  of  authorities  gener- 
ally supported  by  statutes  and  by  decisions  of  courts  which 
hold  that  the  reciuisite  lien  upon  the  property  may  be  created 
by  levy  of  a  writ  of  attachment  which  gives  notice  to  the 
world  of  its  existence  and  protects  the  creditor  until  a  judg- 
ment can  be  obtained  at  law  and  his  claim  fixed  and  settled  as 
to  amount,  when  he  can  at  once  file  his  bill  to  remove  any  in- 
cumbrance or  obstruction  that  may  stand  in  the  way  of  a  sale 
of  the  property  to  satisfy  his  debt.  Another  line  of  authority 
holds  that  as  soon  as  the  attachment  is  levied  a  lien  is  estab- 
lished and  the  amount  of  the  judgment  can  be  as  well  de- 
termined in  the  equity  court  as  the  law  court,  and  that  it  is 
not  necessary  to  obtain  a  judgment  before  filing  the  bill. 
Some  of  the  courts  have  urged  that  it  is  great  hardship  and  in- 
justice to  forbid  the  interference  of  equity  until  a  judgment  is 
obtained ;  that  it  prolongs  the  litigation,  and  that  it  is  no  an- 

iHager  v.  Shindler,  29  Cal.  47.  »Tennent  v.  Battey.  18  Kan.  334, 

»  Marshall  v.  Bla.ss,  82  Mich.  518,  46    327:  Aloiy  v.  Piatt,  16  Wia  16a 
N.  W.  947. 


§  492.]  REMEDIES    FOR    ENFORCEMENT   OF   LIENS,  ETC. 


779 


gwer  to  say  that  it  is  one  of  the  hazards  which  every  one  must 
incur  who  does  business  on  credit.  In  this  connection  it  has 
been  said:  "If  the  risk  can  be  diminished  without  injustice 
to  honest,  struggling  debtors,  it  ought  to  be  done.  The  rule 
ought  to  be  relaxed,  if  it  will  be  promotive  of  justice.  The 
matter  of  practice  is  not  of  so  much  consequence  as  the  proper 
administration  of  justice.  The  difficulty  in  all  such  cases  is 
about  the  same,  and  lies  in  the  fact  that  the  debtor  is  about 
to  dispose  of  his  property  before  a  judgment  at  law  can  be  ob- 
tained." '  The  authorities  cannot  be  reconciled,  nor  can  it  be 
determined  where  the  weight  of  authority  rests,  lor  the  reason 
that  in  almost  every  jurisdiction  the  question  is  determined 
largelj'  by  statute. 

The  California  court,  in  holding  to  the  doctrine  that  the 
levy  of  an  attachment  creates  a  sufficient  lien  to  support  the 
creditors'  bill,  says:  "The  authorities  do  not  place  the  right 
to  go  into  equity  upon  the  ground  that  the  plaintiffs  must 
show  themselves  to  be  creditors  by  judgment;  but  they  go  on 
the  ground  that  they  must  show  a  lien  on  the  property ;  and 
this  lien  exists  as  well  by  the  levy  of  an  attachment  as  by  exe- 
cution." ^ 


1  Dawson  v.  Sims,  14  Oreg.  .561,  565. 
Mr.  Waite,  in  his  worli  on  Fraudu- 
lent Conveyances,  p.  129,  sec.  81,  in 
very  direct  and   pointed   language, 
denies  the  theory  that  an   attach- 
ment will  support  the  bill.    He  says: 
"We   deny  that  a   mere  attaching 
creditor  can,  under  any  correct  the- 
ory of   law,  become  an   actor  in  a 
creditor's  suit.     Indeed   the  under- 
lying princip  es  of  the  cases  in  which 
it  is  sought  to  make  a  lien  acquired 
by  the  provisional  remedy  of  attach- 
ment the  practical  equivalent  of  a 
lien  pro'jured  by  final  judgment  are 
subversive  of  the  time-honored  pol- 
icy and   rule  of  the  courts,  that  a 
creditor's  bi!l  must  be  founded  upon 
a   definite    claim    established    by  a 
judgment  at    law.     If  the  innova- 
tions in  modern  procedure  call  for 
the  abroiiation  of  this  old  chancery 
practice,  it  should  not  be  superseded 


by  indirection,  but  deliberately,  and 
by  some  carefully  formulated  legis- 
lative substitute."  Hahn  v.  Salmon, 
20  Fed.  801. 

2Conroy  v.  Woods,  13  Cal.  626, 
633;  Bickerstaflf  v.  Doub,  19  Cal.  109. 
In  Tappan  v.  Evans.  U  N.  H.  311, 
327,  the  court,  after  discussing  au- 
thorities, said:  "The  general  prin- 
ciple deducible  from  the  autliori- 
ties  applicable  to  this  case  is,  that 
where  propeity  is  subject  to  execu- 
tion, and  a  creditor  seeks  to  have  a 
fraudulent  conveyance  or  obstruc- 
tion to  a  levy  or  sale  removed,  he 
may  file  a  bill  as  soon  as  he  has  ob- 
tained a  specific  lien  upon  the  prop- 
erty, whether  the  lien  be  obtained 
by  attachment,  judgment,  or  the  is- 
suing of  an  execution.  But  if  the 
property  is  not  subject  to  levy  or 
sale,  or  if  the  creditor  has  obtained 
no  lien,  he  must  show  his  remedy  at 


780 


KEMEDIES    FOK    ENFORCEMENT   OF    LIENS,  ETC.  [§  493w 


§  49J}.  Parties  to  creditors'  bills. —  (1)  Plaintiffs.  A  cred- 
itor's bill  should  be  filed  by  the  judgment  creditor  or  the 
person  who  owns  the  judgment.  It  is  a  well-settled  rule  that 
several  judgment  creditors  may  unite  in  one  suit  in  the  equity 


law  exhausted,  by  an  actual  return 
upon  his  execution  that  no  goods  or 
estate  can  be  found  (which  is  pur.-^u- 
ing  iiis  remedy  at  law  to  every  avail- 
able extent),  before  he  can  file  a  bill 
to  reach  tiie  equitable  property  of 
the  debtor."  Citino;  a  number  of 
authorities.  The  Wisconsin  court, 
holding  that  the  levy  of  a  writ  of  at^ 
tacliment  creates  sufficient  lien,  very 
fuly  discusses  the  authorities  in  that 
state  in  French  Lumbering  Co.  v. 
Theriault  et  ux.,  107  Wis.  627,  637, 
where  the  court,  in  summing  up  the 
opinion,  say:  "That  a  judgment 
against  a  fraudulent  vendor  of  real 
property,  which  has  been  duly  dock- 
eted in  the  county  where  such  real 
estate  is  located,  does  not  of  itself 
create  a  lien  on  such  property,  be- 
cause the  conveyance  vests  in  the 
fraudulent  vendee  the  title  of  his 
vendor,  subject  to  the  riglit  of  the 
defrauded  creditors  at  their  election 
to  avoid  it;  that  such  creditor  can 
only  avoid  the  fraudulent  transfer 
and  obtain  a  specific  lien  upon  the 
property  covered  by  it  by  a  seizure 
thereof  under  a  writ  of  attachment, 
or  execution,  etc."  Almy  v.  Piatt,  16 
Wis.  169;  Evans  v.  Laughton,  69  Wis. 
138;  Crocker  v.  Huntzicker,  113  Wi& 
187.  In  Curry  v.  Glass,  25  N.  J.  Eq. 
108,  109,  the  court  say:  "The  com- 
plainants having  filed  with  the  clerk 
of  the  court,  out  of  which  the  at- 
tachment issued,  an  affidavit  of  their 
debt,  were  admitted  by  rule  as  cred- 
itors under  the  attachment.  The 
bill  is  filed  to  remove  the  incum- 
brance of  the  conveyance  above  re- 
ferred to,  and  the  sole  question  is, 
whether  the  complainants,  as  cred- 
itors admitted  under  the  attach- 
ment,   can     maintain    this    action. 


That  the  plaintiff  in  attachment 
could  do  so  cannot  be  doubted." 
Cocks  V.  Varney,  45  N.  J.  Eq.  73, 
17  Atl.  108.  Allowed  by  statuta 
Little  V.  Ragan,  83  Ky.  321.  Au- 
thorities opposed  to  the  doctrine 
and  holding  that  the  lien  can  only 
be  created  by  the  obtaining  of  a 
judgment  where  the  j  idgment  by 
statute  is  made  a  lien  upon  the 
debtor's  property,  or  by  judgment 
and  return  of  execution  nulla  bona, 
are  very  numerous  and  we  do  not 
undertake  to  collect  them  hera 
They  liave  been  generally  cited  in 
various  sections.  In  Streight  v. 
Junk,  8  C.  C.  A.  137,  59  Fed.  321,  it 
was  held  that  the  creditor's  bill 
must  have  judgment  to  support  it 
or  show  cause  why  not.  And  in 
Fink  V.  Patterson,  21  Fed.  602,  it  was 
held  that  where  the  bill  was  filed  on 
behalf  of  all  the  creditors  desiring 
to  come  in  and  be  made  parties  and 
is  directed  at  defendant's  entire  as- 
sets, both  legal  and  equitable,  the 
previous  recovery  of  a  judgment  at 
law  is  not  a  condition  precedent.  In 
Massachusetts  (Sand lord  v.  Wright, 
164  Mass.  85,  41  N.  E.  120).  it  is  pro- 
vided by  statute  that  if  the  prop- 
erty cannot  be  attached  or  taken  on 
execution  the  claim  of  the  creditor 
need  not  be  reduced  to  judgment. 
In  the  United  States  court  in  Smith 
V.  Railway  Co.,  99  U.  S.  398,401,  after 
holding  that  the  jurisdiction  of  the 
federal  court  cannot  be  aff'ected  by 
state  legislation,  say:  "The  states, 
however,  may  create  equitable 
rights,  which  those  courts  will  en- 
force where  there  is  jurisdiction  of 
the  parties  and  of  the  subject-mat- 
ter. This  bill,  as  regards  this  point> 
was  well  filed  in  tlie  court  to  which 


§  493. J  REMEDIES    FOB    ENFORCEMENT    OF    LIENS,  ETC  781 

court  af^ainst  their  common  debtor  for  the  recovery  of  their 
judume'nts  out  of  his  .quitable  interests  and  choses  in  action. 
Or  in  a  bill  in  aid  of  their  execution  and  to  set  aside  fraudu- 
lent conveyances  or  assignments,  one  creditor  may  proceed 
alone  upon  his  judgment  or  may  file  his  bill  in  behalf  of  him- 
self and  all  other  creditors.  And  when  several  join  it  is  not 
necessary  that  they  should  jointly  own  the  judgments;  their 
claims  may  be  several  and  the  bill  will  not  be  held  multifa- 
rious for  that  reason,  for  they  each,  though  presenting  their 
several  individual  claims  for  which  they  have  obtained  judg- 
ment, have  one  common  interest  in  the  suit  instituted;' 
namely,  to  subject  the  property  and  property  rights  of  the  de- 
fendant to  the  payment  of  his  debts.  So  a  surety  who  has 
been  subrogated  to  the  rights  and  remedies  of  the  creditors 
against  the  principal  debtor  may,  if  the  debtor  does  not  dis- 
charge the  debt,  proceed  by  creditor's  bill.^     And  where  no 


it  was  addressed.  But  nothing  is 
better  settled  than  that  such  a  bill 
must  be  preceded  by  a  judgment  at 
law  establishing  the  measure  and 
validity  of  the  demand  of  the  com- 
plainant for  which  he  seeks  satis- 
faction in  chancery."  Wiggans  v. 
Armstrong.  2  Johns.  Ch.  (N.  Y.)  144; 
Skeele  v.  Stan  wood,  33  Me.  307;  May 
V.  Bryn,  17  App.  D.  C.  392. 

1  Mann  v.  Ruby,  103  111.  348;  Mur- 
ray V.  Hay,  1  Barb.  Ch.  (N.  Y.)  59; 
Blackett  v.  Laimbeer,  1  Sandf.  Ch. 
b6(3.  In  Lentilhon  v.  Moffat,  1  Edw. 
Ch.  (N.  Y.)  450,  457,  it  was  said: 
"Altliough  the  complainants  have 
no  huch  joint  interest,  yet  they  have 
acquired  similar  rights  with  respect 
to  the  property  of  their  debtor.  The 
return  of  nulla  bona  to  their  several 
executions,  for  the  causes  stated  in 
the  bill,  gave  each  of  them  a  right  to 
come  into  this  court;  and  as  this 
right  accrued  to  them  simultane- 
ously, it  was  fit  and  proper  they 
should  unite  in  availing  themselves 
of  it.  Whenever  there  are  creditors 
or  other  per&ons  having  demands, 
which  are  cognizable  in  equity  and 


of  equal  standing,  upon  a  common 
fund  or  estate,  and  out  of  which 
they  claim  to  be  paid,  the  proper 
course  is  for  tKem  to  unite  m  one 
bill,  or  for  one  or  more  to  tile  a  bill 
in  behalf  of  all.  It  prevents  a  multi- 
plied litigation  and  saves  expense, 
while  justice  is  equally  as  well  and 
even  better  administered  through 
this  form  than  by  having  a  variety 
of  suits  before  the  court  and  all  for 
the  same  object.  Such  a  bill  is  not 
multifarious.  It  relates  to  but  one 
subject-matter:  the  discovery  of  the 
property  or  fund  to  be  applit  d  to  the 
payment  of  the  debts  and  the  man- 
ner of  its  distributicn."  Norris  v. 
Bean,  17  W.  Va.  655.  In  a  suit  by  a 
deserted  wife  to  subject  the  home- 
stead to  the  payment  of  a  judgment 
obtained  by  her  against  her  husi^and, 
it  was  held  that  the  trustee  in  whose 
name  the  judgment  was  taken  is  the 
proper  party.  Eaton  v.  Eaton,  68 
Mich.  158. 36  N.  W.  50;  Myers  v.  Fenn, 
5  Wall.  (U.  S.)  207. 

2  Sppiglemyer.  AdmV,  etc.  v.  Craw- 
ford, 6  Paige  Ch.  (N.  Y.)  254. 


782  REMEDIES   FOR   ENFORCEMENT    OF   LIENS,  ETC.  [§  4931 

one  of  the  complainants'  claim  is  sufficient  in  amount  to  give 
the  court  jurisdiction,  it  has  been  held  and  is  the  universal  rule 
that  they  may  join  them,  and  if  the  total  amount  be  sulHcient 
the  court  will  entertain  the  action.^ 

(2)  Defendants.  It  is  a  general  rule  that  all  parties  against 
whom  the  judgment  for  the  claim  or  debt  has  been  recovered 
and  the  execution  issued  should  be  made  defendants  to  a 
creditor's  bill,  but  if  there  are  several  and  some  of  them  insolv- 
ent or  out  of  the  jurisdiction  of  the  court  or  merely  sureties,  it 
is  not  necessary  to  make  them  parties;  but  such  facts  must  be 
distinctly  averred  in  the  bill,  or  it  may  be  demurrable  for  want 
of  parties.'^ 

A  judgment  creditor  having  exhausted  his  remedy  at  law 
may  pursue  any  equitable  interest,  trust  or  demand  of  his 
debtor  wherever  or  with  whomsoever  it  may  be  found,  and 
whenever  it  is  found  the  party  having  it  or  controlling  it 
should  be  made  a  party  defendant.  There  is  no  exception  in 
filing  creditors'  bills  to  the  general  rule  appl^n'ng  in  all  equity 
cases  that  all  parties  in  interest  whom  the  decree  would  affect 
should  be  made  parties  plaintiff  or  defendant  to  the  bill.^  The 
judgment  debtor  is,  however,  a  necessary  part}',  whether  an 
individual  representing  his  own  individual  interests,  a  copart- 
ner, a  trustee  or  a  corporation.*     If  a  corporation  is  the  judg- 

1  Dix  V.  Briggs,  9  Paige  Ch.  (N.  Y.)  in  the  bill  that  those  who  are  not 
595;  Brinkerhoff  v.  Brown,  6  Johns,  joined  in  the  suit  are  wholly  insolv- 
Ch.  (N.  Y.)  217;  Nelson  v.  Hill,  46  U.  ent  and  destitute  of  property.  In 
S.  (5  How.)  127;  Brown  v.  Bates,  lO  sunh  a  case  it  would  be  useless  ex- 
Ala.  482;  Bank  v.  Tyler.  55  Mich.  2W,  pense  to  proceed  against  those  who 
21  N.  W.  853;  Sage  V.  Mosher,  28  Barb,  have  nothing  to  contribute,  either 
(N.  Y.)  287;  Libby  v.  Norris,  142  to  the  satisfaction  of  the  complain- 
Mass.  246.7  N.  K  919.  But  a  mere  ant's  demand,  or  to  remunerate  their 
contractcreditorwhohasnotreduced  co-defendants,  whose  equitable  in- 
his  claim  to  judgment  cannot  file  a  terests  or  choses  in  action  might  be 
judgment  creditor's  bill.  Harrison  taken  and  applied  to  the  satisfaction 
V.  Farmers',  etc.  Co.,  86  C.  C.  A.  448,  of  the  joint  debt." 

94  Fed.  728.  3  Bowen  v.   Gent,  54  Md.  555.     In 

2  In  Van  Cleef  v.  Sickles,  5  Paige  Allen  v.  Montgomery  Ry.  Co.,  11 
Ch.  (N.  Y.)  504.  506,  the  court  say:  Ala.  437,  the  court  held  that  the 
"The  vice-chancellor  is  right  in  su|,v  plaintiff  might  join  as  many  as  was 
posing  that  it  is  not  necessary  to  necessary  to  get  a  full  remedy, 
make  all  the  joint  debtors,  against  Doiierty  v.  Holliday,  137  Ind.  282; 
whom  the  judgment  was  obtained.  Hartley  v.  Blood^ood,  16  AI.a.  283. 
parties  defendants  to  a  creditor's  ^Stevens  v.  W^hitehead,  75  Ga.  294; 
bill,   provided  it  distinctly  appears  Wilson  v.  City  Bank,  3  Sumn.  (U.  S.) 


§  493.J  KBMEDIES    FOR    ENFORCEMENT    OF    LIENS,  ETC.  783 

ment  debtor,  the  action  is  brought  against  it  in  its  corporate 
name,  and  it  is  not  necessary  or  proper  to  inclutle  the  individ- 
ual stockholders  unless  the  action  be  one  which  affects  the  in- 
dividual stock  of  the  several  stockholders;  or  vehere  the  bill 
seeks  to  subject  the  stock  of  an  individual  stockholder  to  the 
payment  of  a  judgment  against  him;  in  such  case  he  should  be 
made  a  party  because  the  decree  affects  him;  but  it  would  not 
be  necessary  to  make  the  other  stockholders  parties,  as  it  would 
in  no  way  affect  their  interest.  If  the  bill  is  filed  to  discover 
who  the  stockholders  of  a  corporation  are,  then  it  would  be 
proper  to  make  the  officers  of  the  corporation,  or  such  of  them 
as  know  the  facts  sought  for,  parties.' 

If  the  debtor  has  conveyed  different  portions  of  his  property 
in  fraud  of  his  creditors,  all  grantees  may  be  joined  in  one  bill 
with  the  judgment  creditor.  And  where  two  or  more  persons 
hold  property  of  the  judgment  creditor  by  differentconveyances, 
they  may  be  joined  with  him  as  defendants;  and  if  the  bill  seeks 
to  rectify  or  vacate  a  deed  of  conveyance  alleged  to  be  fraudu- 
lently executed,  in  such  case  all  grantees  in  the  deed  are  neces- 
sary parties  and  may  be  joined  with  the  judgment  debtor,  for  in 
such  case  the  object  of  the  suit  is  single,  and  therefore  different 
persons  having  or  claiming  separate  interests,  all  connected 
with  and  arising  out  of  the  single  object  of  the  suit,  may  be 
joined  as  defendants.  Such  a  bill  cannot  be  said  to  be  multifa- 
rious; on  the  contrary  it  would  avoid  a  multiplicity  of  suits.' 
And  so  if  the  creditors  have  obtained  judgments,  which  are 
liens  upon  the  property  alleged  to  have  been  fraudulently  con- 
veyed, or  have  levied  executions  and  thus  obtained  liens,  they 
may,  if  they  fail  to  join  as  i)laintiffs  in  the  action,  be  made 
defendants,  with   proper  allegations  showing  their  interest.' 

432;  United  States  v.  Rowland,  17  4  Sandf.  (N.  Y.)  89.  Where  the  bill  is 
U.  S.  (4  Wheat.)  108.  In  Miller  v.  tiled  for  an  arc-ounting  and  enforcing 
Hall,  70  N.  Y.  250,  ~'52,  it  was  said:  the  personal  liabilities  of  stonkhold- 
"  It  is  well  settled  that  in  the  case  of  ers  lor  a  corporate  debt,  the  corpora- 
a  creditor's  bili  to  reach  a  chose  in  tion  and  all  stockholders  in  such 
action,  which  is  the  character  of  the  case  should  be  made  parties.  Elk- 
present  action,  the  judgment  debtor  hart  Nat  Bank  v.  Northwestern,  etc. 
is  a  necessary  party,  as  is  manifest  Co.,  87  Fed.  252. 

from  the  opinion  referred  to,  and  the  ^  Boyd  v.  Hoyt,  5  Paige  Ch.  (N.  Y.) 

current  authority  is  in  favor  of  this  65,  77;  Fellows  v.  Fellows.  4  C'owen 

position."  (N.Y.),682:  Ward  v.Hollins.UMd.  158. 

^Bogardusv.  Rosendale    Mfg.  Co.,  3  Pappenbeimer  v.  Roberts,  24  W. 


784-  REMEDIES    FOR    ENFORCEMENT    OF    LIENS,  ETC.  [§  494. 

But  it  is  not  necessary  to  make  all  joint  creditors  parties  to  the 
bill.» 

^  494.  The  form  of  the  bill.— The  form  of  the  bill  some- 
what depends  upon  the  statutes  in  force  in  the  particular  juris- 
diction where  it  is  to  be  filed.  Generally  it  may  be  said  that 
the  facts  upon  which  the  particular  action  sou^-ht  to  be  com- 
menced can  be  sustained  must  be  particularly  set  forth  in  the 
bill  of  complaint;  that  is  to  say,  the  recovery  of  the  judg- 
ment on  which  it  is  founded,  the  court  which  rendered  the 
judgment,  the  nature  of  the  action,  the  names  of  the  parties, 
and  the  amount  of  damages  and  costs.  It  must  ajipear  upon 
the  face  of  the  bill,  in  order  to  give  the  court  jurisdiction,  that 
the  sum  claimed  exceeds  one  hundred  dollars  in  amount.  If 
the  judgment  be  one  of  a  justice  court  or  a  court  not  of  record, 
there  should  be  an  allegation  showing  that  a  transcript  of  the 
judgment  was  filed  and  a  judgment  entered  thereon  in  a  court 
of  record,  and  the  time  when  such  judgment  was  obtained  and 
entered.  If  the  action  be  one  where  it  is  sought  to  reach 
equitable  interests  or  choses  in  action,  the  bill  of  complaint 
should  show  that  an  execution  was  duly  issued  upon  the  judg- 
ment obtained,  giving  the  date  thereof;  that  it  was  placed  in 
the  hands  of  an  officer  for  service,  showing  the  time  when  it 
was  given  to  the  officer  and  the  directions  thereon  indorsed  to 
levy  the  same;  that  the  execution  was  issued  to  the  county 
where  the  defendant  resided  at  the  time,  and  if  to  another 
county  the  legal  reasons  why;  that  after  diligent  search  the 
officer  was  unable  to  find  any  property  from  which  to  make 
the  execution;  alleging  the  return  of  the  execution  unsatis- 

Va.  702;  Bilmyer  v.  Sherman.  23  W.  compel  him  to  pay  the  plaintiff  the 

Va.  6')6;  Rountree  v.  McKay,  59  N.  C.  debt  which  he  owes  to  tlie  judgment 

(6    Jones   Eq.)    87.      In    Judson    v.  debtor.     Where   property   has  been 

Walker,  155  Mo.   166,  55  S.  W.  1083,  fraudulently  assigned  by  a  debtor  so 

held  tiiat  assignees  of  life  insurance  that  he  has  no  legal   or  equitable 

policies    should     be    made    parties,  right  as  against  the  assignee,   the 

Guy  ton  v.  Terrell,  132  Ala.  66.  31  So.  assignee  must  be  made  a  party  to  the 

83.  bill  in  order  to  reach  the  property  in 

•  Burke  v.  Morris,  121   Ala.  126,  25  his  hands;  but  if  the  legal  or  equi- 

So.  75'J.    In  Stafford  v.  Mott,  3  Paige  table  interest  in  the  property  is  still 

Ch.    (N.  Y.)  100,  it  was  held  that  a  held  by  the  debtor,  the  assignee  need 

debtor  to  the  judgment  debtor  may  not  be  a  party.    Eameston  v.  Lyde,  1 

be  made   a    party    defendant  to    a  Paige  Ch.  (N.  Y.)  637. 
creditor's  bill  where  it  is  sought  to 


§  49:1:.]        remedip:s  for  enforcement  of  liens,  etc.  785 

fied  in  whole  or  in  part,  with  the  actual  return  of  the  officer 
thereon  and  the  date  thereof.  This  is  important,  for  the  exe- 
cution must  appear  to  have  run  its  full  time  and  to  have  been 
returned  before  the  filing  of  the  bill. 

If  the  action  be  one  in  aid  of  execution,  it  is  not  necessary 
to  show  that  the  execution  issued  was  returned  nulla  bona, 
but  it  is  enough  to  show  that  it  was  placed  in  the  hands  of 
the  officer  for  service  and  the  time  when;  that  it  was  levied 
upon  the  property  of  the  defendant,  describing  it  and  giving 
the  date  of  the  levy;  that  by  reason  of  said  judgment  and  the 
levy  of  the  execution,  the  judgment  creditor  has  established 
a  lien  upon  the  property  of  the  defendant.  If  a  judgment 
merely  is  relied  upon  as  creating  a  lien  upon  the  property,  this 
should  be  stated  in  terms.  If  the  lien  of  a  levied  writ  of  at- 
tachment is  relied  upon  as  creating  a  lien  sufficient  to  support 
the  bill,  the  bill  should  allege  the  amount  of  the  claim  of  the 
creditor;  that  it  was  due  and  unpaid,  and  such  allegations  of 
fact  as  are  sufficient  to  show  that  the  court  had  jurisdiction  to 
issue  the  writ;  the  date  of  the  issuing  of  the  writ;  in  whose 
behalf;  against  whom;  upon  what  grounds  and  for  the  seizure 
of  what  property  it  issued;  the  legal  levy  of  the  writ  with  ac- 
curate description  of  the  property  upon  which  it  was  levied, 
the  lien  created  by  reason  thereof,  and  the  continuance  of  the 
lien  until  the  filing  of  the  bill.  The  bill,  if  a  creditor's  bill, 
must  show  that  the  defendant  has  some  property  or  equitable 
interest  or  thing  in  action,  describing  it,  which  in  equity  and 
good  conscience  ought  to  be  applied  to  the  payment  of  the 
complainant's  judgment  or  claim.' 

If  the  bill  is  filed  by  an  assignee  of  the  judgment  or  the 
claim,  that  fact  should  be  set  forth.  The  prayer  of  the  bill 
depends  upon  the  kind  of  bill  that  is  filed.  If  it  is  merely  to 
reach  choses  in  action  or  equitable  interests,  usually  the  bill 
should  pray  for  a  discovery,  asking  by  specific  interrogatories 

iln  Catlin  v.  Doughty,  13  How.  ing  for  a  discovery  thereof.  Bailey 
Pr.  (N.  Y.)  457,  it  was  held  that  the  v.  Ryder,  10  N.  Y.  803:  Graff  v.  Bon- 
complaint  should  state  positively  nett,  31  N.  Y.  9.  In  Muir  v.  Hodges, 
that  the  debtor  has  property  or  in-  116  Fed.  912,  it  was  held  that  if  the 
terests  in  property  which  the  com-  description  is  such  that  tiie  defend- 
plainant  prays  the  defendant  may  ant  will  understand  the  property 
be  adjudged  to  apply  to  the  pay-  that  is  meant  it  is  sufficient 
ment  of  the  judgment,  the  bill  call- 
50 


786        REMEDIES   FOE   ENFOECEMENT   OF    LIENS,  ETC.       [§§  495,  496. 

for  the  facts  desired.  It  usually  prays  for  an  injunction  and 
receiver  and  lor  an  application  of  the  particular  interests 
or  property  to  the  payment  of  the  creditor's  claim.  If  in  aid 
of  execution  the  prayer  may  be  quite  similar,  praying  that 
the  incumbrance  or  obstruction  be  set  aside  and  the  prop- 
erty already  levied  upon  be  subjected  to  sale  upon  the  execu- 
tion of  the  writ  levied  for  the  satisfaction  of  the  creditor's 
claim,  and  the  bill  should  conclude  with  a  prayer  for  general 
relief.  It  is  difficult  to  set  forth  in  terms  any  general  form  of 
a  bill  or  prayer  in  these  cases,  as  they  depend  so  largely  upon 
the  particular  case  and  the  statutes  which  govern  them.'  The 
bill  of  complaint  must  be  sworn  to;  the  verification  may  be  in 
the  usual  form. 

§  495.  Bill  for  double  purpose,  to  reach  equitable  assets 
and  in  aid  of  execution, —  It  is  universally  considered  to  be 
regular  to  file  a  bill  for  the  double  purpose  of  aiding  an  execu- 
tion and  a  creditor's  bill  to  reach  property  and  choses  in  action 
not  open  to  execution.'^  In  such  case  the  better  practice  seems 
to  be  that  a  judgment  should  be  obtained,  an  execution  issued 
and  returned  unsatisfied,  ami  subsequently  another  execution 
be  issued  and  levied  upon  the  particular  property  which  it  is 
sought  to  subject  to  the  payment  of  the  judgment  before  filing 
the  bill. 

§496.  The  defense  —  Demurrer  —  Plea. —  Generally  the 
defense  to  a  creditor's  bill  may  be  made  as  in  any  other  equity 
suit  by  demurrer,  plea  or  answer,  the  conditions  admitting 
each  of  said  defenses  being  the  same  as  in  other  cases  and  so 
often  discussed;  as,  for  example,  if  upon  the  face  of  the  bill  it 
appears  that  the  court  has  no  jurisdiction,  that  the  claim  of  the 
debtor  has  not  been  reduced  to  judgment,  that  no  execution 
has  ever  been  issued,  or,  if  the  bill  be  one  in  aid  of  execution, 
that  no  lien  has  been  obtained  upon  the  debtor's  property  by 
levy  of  an  execution  or  otherwise,  a  demurrer  could  be  suc- 

iThe  bill  should  state  the  docket-  2  Wilson  v.  Addison.  127  Mich.  680: 
ing  of  a  judgment  except  where  re-  Vanderpool  v.  Notley,  71  Mich.  422, 
covered  in  court  from  whicli  the  exe-  428;  Beam  v.  Bennett,  51  Mich.  198, 
cution  may  issue.  Younsj;s  v.  Morri-  16  N.  W.  316;  Williams  v.  Hubbard, 
son,  10  PaiKB  Ch.  (N.  Y.)  325.  A  com-  Walk.  Ch.  (Mich.)  28;  Clark  v.  Davis, 
plaint  held  sufficient  See  Stetson  v.  Harr.  Ch.  (Mich.)  227;  Reeg  v.  Burn- 
Hopper,  70  N.  Y.  S.  170.  ham,  55  Mich.  39. 


§  497.]  EEMEDIE8   FOE    ENFORCEMENT   OF    LIENS,  ETC.  787 

cessfull}'  interposed,*  If  any  one  of  the  requisites  to  sustain 
the  bill  is  actually  wanting,  though  it  does  not  appear  upon 
the  face  of  the  bill,  it  can  be  taken  advantage  of  by  plea. 
As,  where  jurisdictional  facts  are  wanting,  the  defendant  may 
take  advantage  of  it  by  a  plea  to  the  jurisdiction. 

A  creditor's  bill  is  in  the  nature  of  a  bill  of  discovery  and 
more  or  less  dependent  upon  the  facts  sought  for  from  the  de- 
fendant, and  when  the  court  is  satisfied  that  a  discovery  of 
the  facts  sought  for  in  the  bill  of  complaint  would  make  the 
subject-matter  of  the  suit  proper  for  equitable  relief,  a  general 
demurrer  will  not  be  sustained.' 

§  41)7.  Theausv/er. —  The  bill  of  complaint  should,  as  a  gen- 
eral rule,  call  for  an  answer  under  oath.  It  seeks  for  discovery  of 
facts  relative  to  the  assets  of  the  defendant  debtor,  and  under- 
takes to  follow  and  appropriate  them  to  the  payment  of  the 
creditor's  judgment,  or  to  set  aside  a  fraudulent  transfer  which 
affects  or  obstructs  the  sale  of  the  property  upon  execution  to 
satisfy  the  creditor's  claim.  And  so,  to  effect  the  purpose  which 
it  seeks,  it  is  necessary  that  an  answer  under  oath  be  required; 
in  other  words,  the  bill  is  necessarily  a  bill  of  discovery,  and 
to  compel  a  discovery  requires  a  verified  answer.  The  debtor 
and  his  alienees  are  generally  made  parties  defendants  and 
are  required  to  make  and  file  separate  answers;  for  it  is  a 
general  rule  that  the  complainant  is  entitled  to  the  several  an- 
swers of  the  defendants  that  they  may  have  a  discover}'  of  the 
facts  in  the  possession  of  each  defendant,  not  only  as  to  the 
separate  property  and  the  relation  of  each  defendant  to  the 
subject-matter  of  the  suit,  but  of  the  knowledge  of  each  as  to 
the  title  and  holdings  of  his  co-defendants. 

A  creditor's  bill  is  a  search  for  property  or  assets  which 
legally  or  equitably  belong  to  the  defendant  debtor,  and  a  di&- 

1  Brock  V.  Rich,  76  Mich.  644,  647.  zanca"  Bleeker  v.  Bingham,  3  Paige 
2 In  Clark  v.  Davis,  Harr.  Ch.  Cb.  (N.  Y.)  246,  251.  In  Brownell  v. 
(Mich.)  227.  235,  the  court  say:  "A  Curtis,  10  Paige  Ch.  (N.  Y.)  210,  213, 
general  demurrer  for  want  of  equity  the  court  held  it  to  be  a  well  settled 
cannot  be  sustained,  unless  the  court  rule  upon  a  bill  of  discovery  and  re- 
is  satisfied  that  nodiscovery  or  proof  lief  that  the  defendant  may  answer 
properly  called  for  by  or  founded  on  and  make  the  discovery  sought 
the  alleviations  in  the  bill  can  make  and  demur  to  the  relief,  citing 
the  subject-matter  of  the  suit  a  cases.  Smith  v.  Thompson,  Walk,  Ch. 
proper    case     for    equitablo    cogni-  (Mich.)  1. 


788  REMEDIES    FOR    ENFORCEMENT    OF    LIENS,  ETC.  [§  497. 

corery  under  oath  is  required  from  every  defendant  who  has 
knowledge  upon  the  subject.^  For  this  reason  an  answer  under 
oath  should  be  required;  a  general  answer  without  oath  con- 
taining mere  general  denials  would  not  be  sufficient  to  meet 
the  requirements  of  the  case.  Creditors'  bills,  or  bills  in  aid  of 
execution,  from  their  very  nature  demand  a  full  and  complete 
disclosure  as  to  all  of  the  facts  put  in  issue  by  the  bill.  The  de- 
fense of  the  judgment  debtor  and  his  alienees,  who  are  defend- 
ants, often  rests  upon  entirely  different  ground;  as,  for  exam- 
ple, where  the  alienee  or  holder  is  a  hona  fide  purchaser,  he 
has  a  complete  defense  to  the  bill  even  though  the  judgment 
debtor,  his  grantor  and  co-defendant,  might  have  intended  to 
fraudulently  dispose  of  his  property  to  satisfy  the  judgment 
in  question;  for  it  is  held  that  the  actual  secret  intent  of  the 
grantor,  however  bad,  cannot  affect  a  hona  fide  purchaser  with- 
out notice.'^ 

The  bill  is  always  open,  as  in  other  equity  cases,  to  defenses 
which  traverse  the  facts  alleged  in  the  bill  and  which  are  ma- 
terial and  necessary  to  a  recovery;  as,  for  example,  that  there 
has  been  no  judgment  at  law  obtained  fixing  the  claim  of  the 
complainant;  that  there  has  been  no  levy  of  execution  and  re- 
turn unsatisfied  as  required;  that  the  judgment  upon  which 
the  plaintiflf's  bill  rests  has  been  fully  satisfied.  But  as  we  have 
seen,  the  judgment  cannot  be  collaterally  attacked  by  the  de- 
fendant in  his  answer,'  unless  it  can  be  shown  that  the  court 
had  no  jurisdiction  to  render  the  judgment* 

1  2  Barb.  Ch.  Pr.,  vol.  II,  p.  166.  cited.    Sands  v.  Hildreth,  14  Johns. 

2Hollister  V.  Loud,  2Mich.309,319.  393;  Ball  v.  Phenicie,  94  Mich.  355, 
In  this  case  the  court  say:  "Acting  363;    Thames  &    Co.    v.    Rembert'» 
upon  this  principle,  it  has  come  to  Adra'r,  Gi  Ala.  561;  Green  &  Tram- 
be  an  established  rule  of  law  in  this  mell  v.  Trieber,  3  Md.  11,  35. 
country  and  in  England,  which  is  '^nfe,  §490. 

sustained  by  a  train  of  decisions  in  *  In  Michigan  it  has  been  held  that 
the  courts  of  both  countries,  that  a  a  creditor's  bill  must  be  dismissed  if 
debtor  in  failing  circumstances  may,  it  is  filed  before  the  return  day  of  the 
in  the  absence  of  any  existing  lien,  execution,  or  if  the  execution  is  re- 
make a  conveyance  or  assignment  of  turned  bafore  the  day  it  expires. 
the  whole  of  his  property  for  the  First  Nat.  Bank  v.  Dwight,  83  Mich, 
benefit  of  a  single  creditor,  in  ex-  189;  Steward  v.  Stevens,  Harr,  Ch. 
elusion  of  all  others,  or  he  may  dis-  (Mich.)  169;  Stafford  v.  Hulbert,  Harr. 
tribute  it  in  unequal  proportions,  Ch.  (Mich.)  435;  Smith  v.  Tlionipson, 
either  among  the  whole  or  a  part  of  Walk.  Ch.  (Mich.)  1;  Beach  v.  White, 
his  creditors."    See  numerous  cases  ib.  496;  McCullough  v.  Day,  45  Mich. 


49  S.]  REMEDIES    FOR    ENFORCEMENT   OF    LIENS,  ETC. 


78» 


§  4^)8.  Injunction  and  receiver.— The  writ  of  injunction  to 
protect  the  property  or  assets  of  the  defendant  debtor  in  the 
hands  of  an  assignee,  alienee,  or  person  alleged  to  have  posses- 
sion of  them  from  any  conveyance  or  transfer  until  the  decree 
of  the  court  is  generally  invoked  and  granted  upon  the  filing 
of  the  bill.  The  writ  is  allowed  upon  the  theory  that  "the 
return  of  the  execution  unsatisfied  presupposes  that  the  property 
of  the  defendant,  if  he  has  any,  will  be  misapplied,  and  en- 
titles the  plaintiff  to  an  injunction  in  the  first  instance,  to  pre- 
vent the  defendant  from  disposing  of  it.">  A  clause  in  the 
injunction  will  generally  be  inserted  restraining  the  debtor 
from  confessing  judgment  for  the  purpose  of  giving  another 
creditor  preference  over  the  complainant  and  to  protect  the 
complainant's  interest,  and  upon  a  proper  showing  a  receiver 
will  be  appointed  to  take  charge  of  the  equitable  or  legal  in- 
terests of  the  judgment  debtor  in  the  funds  or  property  in 
question.^ 

If  the  bill  is  taken  as  confessed  for  want  of  appearance  or 
answer  the  court  will  appoint  a  receiver  and  in  the  same  order 
will  direct  the  defendant  debtor  "  to  assign,  transfer  and  de- 
liver to  the  receiver,  on  oath,  under  the  direction  of  the  mas- 
ter, all  his  property,  equitable  interests,  things  in  action  and 
effects;  and  that  he  appear  before  the  master  from  time  to 
time,  and  produce  such  books  and  papers  and  submit  to  such 
examination  as  the  master  shall  direct,  in  relation  to  any  mat- 
ter which  he  might  have  been  legally  required  to  disclose  if  he 
had  answered  the  bill.'"  And  generally  by  statute  or  rules 
of  practice  it  is  provided  that  a  discovery  may  be  obtained  by 
means  of  an  oral  examination  of  the  debtor  as  to  his  property, 

554;  Tarbell  v.  Millard,  63  Mich.  250.  debtor  which  was  sufficient  to  sat- 
in Nugent  V.  Nugent,  70  Mich.  53,  it  isfy  the  judgment  and  all  costs,  and 
was  held  that  a  void  judgment  in  that  the  complainant's   remedy  by 
attachment  cannot  be  the  basis  of  a  resort  to  such  personal  property  was 
creditor's  bill  to  set  aside  conveyance  neither    uncertain    nor    insufficient 
as  fraudulent.     And  in  Blish  v.  Col-  nor  doubtful,  it  was  held  that  there 
lins,  68  Mich.  542,  it  was  held  that  a  was  nothing  which  would  justify  a 
lien  must  have  been  acquired  by  levy  resort  to  the  real  estate  even  though 
of  execution  before   filing   the  bill  fraudulently    conveyed.      Brock    v. 
and  must  exist  at  the  time  of  filing  Rich,  76  Mich.  644,  647. 
it.     And  where  it  appeared  beyond  12  Barb.  Ch.  Pr..  Bk.  V,  p.  169. 
question    that    there    was   personal  2  See  ante,  i  393. 
property  belonging  to  the  judgment  »  2  Barb.  Ch.  Pr.,  Bk.  V,  p.  167. 


790 


REMEDIES    FOE   ENFORCEMENT    OF    LIENS,  ETa  [§  498. 


before  a  judge  or  a  master,  at  a  time  and  place  specified  in  the 
order.  This  order  appointing  a  receiver  confers  upon  tlie  re- 
ceiver appointed,  in  case  of  failure  of  defendant  to  comply 
with  the  order  making  an  assignment,  the  right  to  collect  and 
sue  for  any  or  all  interests  of  the  debtor  defendant  in  any  prop- 
ert\%  choses  in  action  or  effects  which  may  legally  or  equitably 
belong  to  him,  and  hold  the  same  to  satisfy  the  decree  of  the 
court.^ 

The  defendant  may,  for  good  cause  shown,  move  to  set  aside 
the  order  for  an  injunction  and  receiver,  and  in  such  a  pro- 
ceeding his  answer  under  oath  may  be  used  and  treated  as  an 
affidavit,  and  he  has  the  same  privilege  to  answer  the  bill  and 


•  Green  v.  Hicks,  1  Barb.  Ch.  (N.  Y.) 
309.  In  Storm  v.  Waddell,  2  Sandf. 
Ch.  (N.  Y.)  494,  513,  the  court  dis- 
cuss at  large  the  subject,  saying: 
'•Upon  filing  the  bill,  an  injunction 
is  taken  out  and  served  with  the 
subpoena  to  answer,  restraining  the 
debtor  from  parting  with  any  of  his 
property  or  eflfects  till  the  furtlier 
order  of  the  court.  And  for  the  bet- 
ter protection  of  the  property  and 
its  conversion  into  money,  a  receiver 
is  speedily  appointed,  who,  under 
the  order  of  the  court,  is  vested  with 
all  such  property  (or  with  sufficient 
specific  portions  of  it,  to  pay  the 
com[)lainant's  debt  and  costs,  and 
all  prior  claims  upon  the  same),  and 
the  debtor  is  compelled  to  assign 
and  deliver  such  property  to  the  re- 
ceiver under  the  direction  of  a  mas- 
ter of  the  court.  Unless  the  defend- 
ant can  make  a  defense  on  some  one 
of  the  very  narrow  grounds  open  to 
him,  the  decree  presently  ensues, 
which  directs  the  receiver  to  pay  to 
the  complainant,  out  of  the  fund  m 
his  hands,  the  judgment  with  inter- 
est and  the  costs  of  the  suit.  If 
there  are  several  creditors' suits,  each 
claimant  is  paid  according  to  his 
priority,  as  ascertained  by  the  time 
of  the  filing  of  the  respective  bills 
and  serving  the  process  to  answer. 
This  is  an  epitome  of  the  course  of 


proceeding.  Without  regard  to  the 
injunction,  the  propert}'  of  the  de- 
fendant is  subjected  to  the  suit, 
wherever  it  may  be,  if  the  receiver 
can  lay  hold  of  it  or  the  complain- 
ant can  reach  it  by  the  decree.  The 
injunction,  when  served,  prevents 
the  debtor  from  putting  it  away  or 
squandering  it.  The  suit  does  not 
affect  property  acquired  by  the 
debtor  after  its  commencement.  A 
supplemental  bill,  or  a  proceeding 
of  the  like  nature,  is  necessary  to 
subject  such  property  to  the  debt 
A  receiver  is  a  convenient  and 
important,  but  not  indispensable, 
part  of  the  proceeding.  The  effects 
locked  up,  as  it  were,  in  the  hands 
of  the  debtor  by  the  injunction,  may 
be  decreed  to  be  delivered  to  the 
complainant,  or  sold  by  a  master 
and  applied  in  satisfaction  of  the 
debts  and  costs.  No  voluntary  as- 
signment of  the  debtor  can  impair 
the  complainant's  right,  nor  any  in- 
tervening claim  of  other  creditors. 
I  speak  in  this  outline  of  equitable 
interests  and  things  in  action.  Otiier 
personal  property  will  be  noted  here- 
after. And  as  to  lands.  I  need  only 
say  that  the  court  acts  upon  the 
rents  and  profits,  where  the  legal 
title  or  the  right  to  the  possession  is 
in  the  debtor." 


§  499.] 


KEMEDIES    FOR    ENFORCEMENT    OF    LIENS,  ETC. 


791 


use  the  answer  in  opposition  to  a  motion  for  the  appointment 
of  a  receiver;  but  he  cannot  overcome  the  presumption  of  the 
validity  of  the  judgment  or  the  proceedings  to  collect  the 
judgment  by  mere  allegations  in  the  answer  to  the  creditor's 
bill.i 

§  499.  Lien  obtained  by  creditor's  suit  —  Priority. —  The 
filing  of  the  creditor's  bill  and  the  service  of  process  upon  the 
defendants  create  a  lien  upon  the  property  of  the  judgment 
debtor  which  it  is  sought  to  subject  to  the  payment  of  the 
debt  in  favor  of  the  complainant.  It  places  the  property 
under  the  control  of  the  court,  and  it  will  not  be  permitted 
to  be  withdrawn  by  any  subsequent  act  or  title  so  as  to 
defeat  the  object  of  the  bill,  and  purchasers  of  the  lands  of 
the  debtor,  the  subject-matter  of  the  bill,  after  this  lien  at- 
taches will  be  held  to  take  subject  to  the  lien  of  the  complain- 
ant.^ The  priority  of  liens  obtained  by  filing  creditors'  bills 
or  bills  in  aid  of  execution  is  governed  by  the  time  of  filing 
the  bill  and  issuing  and  serving  process.  The  creditor  who 
first  commences  suit  by  filing  his  bill  and  serving  process  will 
have  priority  over  all  others  even  though  they  first  obtained 
decrees. 


» Rankin  v.  Rothschild,  78  Mich. 
10;  Central  Nat.  Bank  v.  Graham, 
118  Mich.  488;  Andrews  v.  National, 
etc.  Works,  and  City  of  Oconto  v. 
Same,  46  U.  S.  App.  281,  619,  36  L.  R. 
A.  139.  In  Railton  v.  People,  83  III 
App.  396,  it  was  held  that  on  filing  a 
creditors  bill  a  receiver  might  be 
appointed  without  waiting  for  other 
defendants  to  appear  and  plead  or 
answer  the  bill  of  complaint.  But 
in  Banner  v.  Dingus  (Va,,  1899),  33  S. 
E.  530,  it  was  held  error  where  it  did 
not  appear  that  the  judgment  debtor 
wa.s  insolvent,  and  it  did  appear 
that  the  lien  in  question  was  worth 
more  than  the  amount  of  the  lien,  to 
appoint  a  receiver  for  the  rents  and 
profits  out  of  the  lien,  pending  the 
rendition  of  the  decree.  Fisher  v. 
Graham,  113  Ga.  851,  39  S.  E.  805; 
Doty  v.  Irwin,  168  111.  50,  47  N.  E.  768; 
Barr  v.  Voorliees,  55  N.  J.  Eq.  561; 


Benedict  v.  T.  L.  V.  Land  &  Cattle 
Co.  (Neb.,  1903),  94  N.  W.  962;  Dutton 
v.  Thomas,  97  Mich.  93. 

2  Patterson  v.  Brown,  33  N.  Y.  81; 
Field  v.  Sands,  8  Bosw.  (N.  Y.)  685. 
In  Roberts  v.  Railway  Co.,  25  Barb. 
(N.  Y.)  662,  it  was  held  that  by  the 
institution  of  a  creditor's  suit  the 
plaintiff  obtained  a  lien  on  all  the 
choses  in  action  of  the  defendant: 
that  all  the  title  the  defendant  had, 
and  all  that  he  could  pass,  was  sub- 
ject to  the  lien;  that  in  such  case  the 
plaintiff  has  an  immediate  right  to 
atransferof  thedefendant'sproperty 
to  a  receiver.  Storm  v.  Waddell,  2 
Sandf.  Ch.  (N.  Y.)  491.  In  BHbl)ing- 
ton  V.  Brewery  Co.,  13  App,  D.  C. 
.527,  it  was  held  that  the  lien  obtained 
would  take  priority  over  all  subse- 
quent liens,  including  claims  of  cred- 
itors obtaining  judgments  after  the 
filing  of  the  bill  and  those  who  in- 


792  REMEDIES    FOK   ENFOKCEMENT    OF    LIENS,  ETC.  [§  499. 

In  Boynton  v.  Rawson  ^  the  vice-chancellor  said :  "  In  pursu- 
ing the  remedy  in  this  court,  the  vigilant  is  favored;  and  the 
judgment  creditor  who  first  exhausts  his  remedy  at  law,  by 
procuring  an  execution  to  be  returned  unsatisfied,  and  files  his 
bill  in  this  court  to  pursue  and  hunt  out  the  equitable  or  con- 
cealed assets  of  the  judgment  debtor,  will,  even  though  he  be 
the  youngest  in  judgment,  and  the  last  in  execution,  if  he 
comes  here  first,  have  here  in  this  court  priority  over  all  the 
others  as  the  reward  of  his  diligence.  This  is  an  undoubted 
and  undisputed  proposition." 

It  is  said  to  be  a  general  rule  that  "a  creditor's  bill,  with 
proper  and  distinct  averments  as  to  the  property  attempted  to 
be  reached,  will  become  a  lien  upon  the  filing  of  the  bill  and 
service  of  subpoena  upon  those  who  are  proper  parties  defend- 
ant. A  junior  judgment  creditor  may  obtain  a  prior  lien  by 
exhausting  his  remedy  at  law,  and  first  invoking  the  aid  of  a 
court  of  equity,  by  filing  his  bill  and  service  of  process."  "^  But 
where  the  plaintiffs  entered  into  an  understanding  with  other 
creditors  that  they  would  reduce  their  claim  to  judgment  as 
soon  as  practicable  and  file  a  creditor's  bill  to  reach  the  debt- 
or's property  not  subject  to  execution  for  the  benefit  of  all  the 
creditors,  it  was  held  that  they  could  claim  no  preference  from 
the  other  creditors,  as  the  equity  court  is  the  court  of  conscience 
and  would  not  permit  such  violation  of  an  agreement.' 

Where  the  creditor  has  filed  his  bill  in  behalf  of  himself  and 
all  other  creditors  who  may  choose  to  couie  in,  such  creditors 
may  come  into  the  suit  at  any  time,  even  after  the  decree,  and 
participate  in  the  results  according  to  their  several  rights  to 
priority  until  the  funds  or  fruits  of  the  decree  are  exhausted 
by  contribution  among  the  plaintiffs  and  intervening  creditors. 
And  it  has  been  held  that  though  the  bill  be  not  filed  on  be- 
half of  the  plaintiff  and  other  creditors,  nevertheless  other 
creditors  have  the  right  to  intervene,  and  the  court  may  by  de- 

tervened  and  became  parties  to  the  17  N.  K  823;  Holbrook  v.  Ford,  153 

bill   in  the  creditor's  suit.     May  v.  111.  633,  646;    Merchants'  Nat.  Bank 

Bryan,  17  App.  D.  C.  392;  Mandeville  v.  McDonald,  63  Neb.  363,  88  N.  W. 

V.  Campbell,  61  N.  Y.  S.  443.  492. 

1  Clark's  Ch.  (N.  Y.)  585.  588.  s  Talcott  v.  Grant  Wire  &  Spring 

2  Hallorn  v.  Trum,  125  III  247,  253,  Co.,  131  IlL  248,  23  N.  E.  40a 


§  500.]  REMEDIES    FOR   ENFORCEMENT   OF    LIENS,  ETO.  793 

cree  order  distribution  of  the  funds  according  to  their  several 
equitable  rights.^ 

§  500.  The  decree. —  The  privileges  of  amendment  are,  as  we 
have  seen,  very  generous  and  broad  in  the  equity  court,^  and 
as  to  the  granting  of  decrees  would  no  doubt  be  applied  freely.' 
While  this  is  true,  it  must  not  be  understood  that  the  court 
will  permit  a  disregard  of  the  rules  requiring  logical  statement 
with  certainty  and  clearness  of  facts  in  the  pleadings  and  the 
relief  sought  for  in  the  prayer  of  the  bill.  The  plaintiff  is 
always  required  to  state  the  facts  relied  on,  to  such  an  extent 
at  least,  and  with  such  certainty,  that  the  bill  shall  set  forth 
the  case  which  the  evidence  is  calculated  to  disclose,  and  the 
prayer  the  relief  to  which  the  plaintiff  upon  the  case  made  by  the 
bill  is  entitled.*  The  general  prayer  for  relief  gives  to  the  court 
great  latitude  in  the  matter  of  granting  relief;  but  there  is  a 
limit  even  to  the  relief  that  may  be  granted  under  the  prayer 
for  general  relief,  for  it  only  asks  for  such  relief  as  is  war- 
ranted by  equity  and  good  conscience,  and  in  accordance  with 
the  case  made  by  the  bill  and  the  proofs  adduced  at  the  hear- 
ing. But  it  has  been  held  that  where  there  is  no  special  prayer 
the  complainant  may  have  a  decree,  under  a  general  prayer 
for  relief,  to  set  aside  fraudulent  conveyances  if  it  should  turn 
out  on  the  final  hearing  that  they  were  made  to  defraud  cred- 
itors.*   There  is,  however,  a  class  of  cases  where  the  courts 

iDias  V.  Bouchaud,  10  Paige  Ch.  discoveryaswell  as  relief,  the  plaint- 

(N.  Y.)  445;  Wilson  v.  Carrico,  50  W.  iff  is  at  liberty  to  avail  himself  of 

Va.  836,  40  S.  E.  439;  Nebraska  Nat.  any  objections  to  a  proceeding  on 

Bank  v.   Hallowell,  63  Neb.  309,  88  the  part  of  the  defendants  affecting 

N.  W.  556.  his  rights,  although  they  may  not 

*  Ante,  g  244,  etc.  have  been  specified  by,  or  even  gen- 
3  Buswell  V.  Lincks,  8  Daly  (N.  Y.X  erally  charged  in,  the  bill.    The  rule 

518,  results    from   the  necessity  of  the 

♦  Bailey  v.  Ryder,  10  N.  Y.  363.  case,  as  a  creditor  cannot  be  sup- 
5  Williams  v.  Hubbard.  Walk.  Ch.     posed  to  be  thoroughly  acquainted 

(Mich.)  28,  31;  Isham  V.  Sienknecht  with    the    conduct    of    his    debtor 

(Tenn.  Cii.,  1900),  59  S.  W.  779;  Na-  towards    third    jjersons;    especially 

tional  Bank  V.  McCormick  (N.J.  Ch.,  when,  as  is  generally   the  case  in 

1899),  44  Atl.  706;  Remsen  v.  Hay.  2  fraudulent  transactions,  efforts  are 

Edw.  Ch.  535,  543;  Bacliman  v.  Se-  made  to  conceal  the  circumstances 

pulveda.  39  Cal.  688.    And  in  Burtus  from     the     public."    Treadweil     v. 

V.  Tisdall,  4  Barb.  (N.  Y.)  571,  5»0,  the  Brown,  44  N.  H.  551.     But  see  Mcll- 

courtsay:  "As  a  creditors  bill  is  for  value  v.  Smith,  42  Mo.  45;  Davis  v. 


794  EEMEDIE8    FOE    ENFORCEMENT   OF   LIENS,  ETC.  [§  501. 

have  seemed  to  go  bej^ond  the  object  of  the  bill  and  to  have 
granted  relief  not  specifically  praj'ed  for;  as  where  the  bill  is 
filed  for  the  purpose  of  subjecting  certain  property  in  the 
hands  of  assignees  or  alienees  to  the  satisfaction  of  the  debt, 
and  the  fact  of  a  conveyance  to  hona  fide  purchasers  by  such 
assignees  or  alienees  is  discovered  at  the  hearing.  In  such 
case,  it  appearing  that  the  transfer  on  the  part  of  the  defend- 
ant assignee  or  alienee  was  fraudulent  and  to  avoid  the  judg- 
ment debt,  the  courts  have  decreed  that  the  consideration  re- 
ceived for  such  property  from  the  Jo/ia /c?e  purchaser  is  in 
equity  the  same  as  the  property  so  disposed  of,  and  upon 
failure  to  pay  the  same  in  satisfaction  of  the  judgment  debt, 
and  in  accordance  with  the  order  of  the  court,  a  decree  has 
been  granted  ordering  judgment  and  execution  therefor  against 
the  assignee  or  alienee,  such  facts  being  held  to  warrant  a 
personal  money  decree  against  the  assignee,  who  is  held  to 
hold  the  funds  thus  received  as  a  trustee  for  the  benefit  of  the 
judgment  creditors;  such  decrees  the  courts  have  granted,  even 
though  they  are  not  especially  prayed  for,  where  there  is  a 
general  prayer  for  relief.^ 

These  decrees,  it  has  been  said,  are  based  upon  the  theory 
that  the  "  fraudulent  grantee  holds  the  property  in  trust  for 
the  creditors  of  the  fraudulent  grantor,  and,  like  any  other 
trustee,  he  must  preserve  it  intact  for  such  creditors.  If  he 
place  it  beyond  their  reach  by  a  sale  to  a  lonafide  purchaser, 
or  if  he  lessens  its  value  by  giving  a  mortgage  or  other  incum- 
brance upon  it  to  a  hona  fide  purchaser  or  incumbrancer,  he  is 
guilty  of  a  breach  of  duty  for  which  he  must  answer  to  the 
creditors  in  damages."^ 

§  501.  The  form  of  the  decree.— It  would  be  difficult  to 
set  forth  any  fixed  form  of  decree  which  would  apply  to  the 
various  bills  filed  in  creditors'  suits.  A  creditor's  suit  based 
upon  a  bill  to  reach  equitable  interests  or  choses  in  action 
would  require  a  decree  quite  different  in  form  from  one  filed 
in  aid  of  an  execution.     Each  individual  case  demands  a  de- 

Walton.  80  Me.  461;  Blake  v.  Blake,        2  Mason  v.  Pierron,  69  Wis.  585,  595, 

53  Miss.   182;  Lehman   v.  Meyer,  67  34N.  W.  921,  925;  ColumbiaNat.  Bank 

^la-  396.  V.    Baldwin   (Neb.,   1902;,   90   N.  W. 

1  Barger  v.  Buckland,  28  Grat.  (Va.)  890. 
8oa 


§  501.]  EEMEDIE8   FOR   ENFORCEMENT   OF   LIENS,  ETC.  795 

cree  in  form  granting  the  relief  prayed  for  and  warranted  by 
the  pleadings  and  proofs.  There  seem  to  be  many  classes  or 
kinds  of  decrees  applicable  to  these  cases,  depending  upon  the 
object  of  the  suit,  the  pleadings  and  proofs,  and  the  situation 
of  the  property  or  interests  sought  to  be  reached  by  the  pro- 
ceedings.    A  few  of  them  may  be  mentioned  and  classified. 

(1)  Where  a  creditor's  bill  seeks  to  reach  property,  equitable 
interests  or  choses  in  action  which  are  fraudulently  in  the  pos- 
session of  third  persons  or  assignees,  the  assignee  or  fraudulent 
holders  having  been  made  parties  defendant  to  the  bill  are  sub- 
ject to  the  decree  of  the  court,  and  generally  in  such  cases  the 
property,  having  been  converted  by  the  receiver  appointed  in 
the  case,  will  by  order  of  the  court  be  sold  and  the  avails  of  the 
sale  brought  into  court  to  satisfy  its  decree. 

(2)  Where  the  bill  seeks  to  reach  the  consideration  which 
has  been  received  by  third  parties  for  property,  interests  and 
choses  in  action  which  have  been  disposed  of  to  hona  fide  pur- 
chasers, to  satisfy  the  claim  of  the  judgment  creditor,  such 
third  parties  having  been  made  defendants,  the  court  will 
make  a  decree  that  the  property  was  held  by  them  as  trustees 
and  hold  them  accountable  for  the  same,  and  order  the  con- 
sideration received  upon  the  sale  of  the  property  to  be  paid 
into  court  or  to  the  plaintiff  to  satisfy  the  judgment  and  de- 
cree, and  upon  failure  to  do  so  that  the  plaintiff  have  personal 
judgment  and  execution  against  such  third  parties  for  the 
amount. 

(3)  Where  the  bill  is  filed  to  reach  the  consideration  re- 
maining unpaid  by  grantees  of  the  judgment  del)tor  for  prop- 
erty or  interests  disposed  of  to  avoid  his  creditors,  the  court 
will  decree  that  such  grantees  are  trustees  of  the  unpaid  con- 
sideration, holding  the  amount  in  trust  for  the  judgment  cred- 
itor, the  plaintiff  in  the  bill,  and  that  the  same  be  paid  to  him 
in  satisfaction  of  his  claim  or  into  court  to  satisfy  the  decree 
and  judgment,  and  upon  failure  to  do  so  that  the  plaintiff 
have  an  execution  against  the  said  grantee  for  the  amount. 

(4)  Where,  after  filing  the  bill,  a  receiver  has  been  appointed 
and  assets  and  property  have  been  collected  under  the  order 
of  the  court,  the  decree  will  dispose  of  these  assets  for  the  sat- 
isfaction of  the  plaintiff's  claim  and  such  other  claims  as  may 
be  equitably  entitled  thereto  according  to  their  priority. 


796  EEMEDIES    FOE   ENFORCEMENT    OF    LIENS,  ETC.  [§  501. 

(5)  "Where  the  bill  is  filed  to  subject  the  real  estate  of  the 
debtor  which  he  has  fraudulently  conveyed,  to  the  judgment 
and  levy  or  lien  of  the  creditor,  the  assignee  or  grantees  hav- 
ing been  made  parties  to  the  bill,  the  court  will  make  its 
decree  ordering  the  fraudulent  incumbrance  or  obstruction, 
whether  it  be  a  conveyance  or  a  mortgage,  to  be  set  aside  and 
the  property  to  be  subjected  to  the  levy  or  lien  of  the  creditor, 
whereupon  it  may  be  sold  by  the  officer  who  levied  the  execu- 
tion issued  upon  the  judgment  at  law;  or  in  some  cases  the 
equity  court  has  ordered  the  property  to  be  sold  clear  of  the 
fraudulent  incumbrance  for  the  satisfaction  of  its  decree. 

(6)  Where  the  bill  is  filed  to  follow  the  consideration  re- 
ceived by  fraudulent  grantees  of  the  debtor  either  before  or 
after  the  levy  of  the  execution,  the  court  will  decree  a  personal 
judgment  against  such  fraudulent  grantees  and  direct  the  issue 
of  an  execution  for  the  collection  of  the  amount  received  to 
satisfy  the  decree  of  the  court. 

These  are  some  of  many  cases  that  are  presented  and  deter- 
mined in  the  equity  court.  The  general  rules  applicable  to 
courts  of  equity  obtain  in  these  cases,  viz.:  the  court  having 
obtained  jurisdiction  of  the  parties  and  the  cause  will  grant 
such  a  decree  as  is  necessary  to  afford  full  and  adequate  relief 
and  will  dispose  of  the  entire  controversy  and  do  equity  be- 
tween the  parties.^ 

1  Barger  v.  Buckland,  28  Grat.  (Va.)  Fryberger  v.  Berven  (Minn..  1903),  93 

850.     In  Penney  v.  McCuUoch  (Ala.,  N.  W.  1125.     In  Cochran  v.  Cochran, 

1899),  3o  So.  665,  a  decree  was  made  62  Neb.  450, 95  N.  W.  778.  it  was  held 

holding  tlie  mortgagee  for  property  that  a  direction  in  a  decree  that  cer- 

be   had  appropriated   or  converted  tain  property  be  sold  as  upon  execu- 

upon  a  fraudulent  mortgage  given  tion  was  sufficient  authority  for  the 

him  by  the  debtor.    And  in  Morrison  sale,  and  that  errors  at  law  in  the  de- 

V.  Houck  (Iowa,  1903),  93  N.  W.  593,  cree  and  the  proceedings  cannot  be 

grantees  in  a  fraudulent  conveyance  reviewed  on  objections  to  confirma- 

were  decreed  to  pay  the  amount  for  tion  of  sale, 
which  they  could  be  held  j  ustly  liable. 


INDEX. 

References  are  to  sectiona. 
ABATEMENT,  271. 

in  action  of  equity,  271. 

not  considered  in  same  sense  as  abatements  In  actions  at  law, 

271. 
see  Bills  of  Revivor;  Pleas  in  Abatement. 

ACCIDENT— 

equity  will  assume  jurisdiction  in  case  of,  6. 

ACCOUNTING— 

actions  for  and  dissolution  of  partnerships,  453,  458. 
see  Actions  fob  Dissolution  of,  and  Accounting. 

ACTIONS— 

in  partition,  410-416. 

in  which  injunctions  are  prayed  for  and  granted,  398-406. 

to  remove  cloud  from  title,  425-428. 

for  specific  performance  of  contracts,  429-436. 

for  declaration  and  enforcement  of  trusts  and  obligations  arising 

from  fiduciary  relations,  437-444. 
for  contribution,  exoneration  and  subrogation,  445-452. 
for  the  dissolution  of  partnerships  and  for  an  accounting,  453-458. 
where  damages  are  awarded,  459. 
for  the  foreclosure  of  mortgages  or  pledges,  460-481. 
for  marshaling  securities,  482,  485. 

by  creditors'  bills  and  bills  in  aid  of  execution,  486-501. 
to  quiet  title,  see  Bills  to  Remove  Cloud  from  Title,  422-428. 
to  remove  cloud  from  title,  see  Bills  to  Remove  Cloud  from  Trrut, 

422-428. 
for  interpleader,  369-382. 
in  which  receivers  are  appointed,  383-397. 

ADDRESS— 

formal  part  of  bill  of  complaint,  29. 

ADEQUATE  REMEDY  AT  LAW— 

if  there  is,  equity  will  not  assume  jurisdiction,  6. 

applied  to  cases  for  injunction,  (3)  399. 
ADMINISTRATORS— 

as  parties  in  equity  suit,  64. 

executors  and  heirs  as  parties,  64. 

ADMISSIONS— 

in  bill  of  complaint,  301. 

in  answer  of  defendant,  200,  207,  208,  209,  238. 

in  allegations  of  plea,  176. 

admissions  by  demurrer,  effect  of,  110,  111. 

by  default  of  defendant,  101. 


798  INDEX. 

References  are  to  sectioiuL 

ADVERSE  TITLE.    See  BiTXS  to  Quiet  Title,  425,  426,  427. 

ALLEGATIONS.     See  Premises  or  Stating  Part  or  Bnx;   Cebtaintt 
AS  to  Allegation. 

AMENDMENTS  ALLOWED  IN  CERTAIN  CASES,  243. 
allowed  to  both  parties,  244. 

amendment  after  default  avoids  all  decretal  orders,  103. 
plaintiff  maj'  amend  after  plea,  177. 
mispleadings  matters  of  form,  245. 
not  allowed  to  prejudice  any  party,  245. 
amendments  largely  in  discretion  of  court,  246. 
caution  in  allowing  where  pleadings  sworn  to,  246. 
and  when  facts  known  at  time  of  filing  pleading,  246. 
after  cause  has  been  heard,  246. 
when  pleadings  verified,  247. 
matter  occurring  after  filing  original,  248. 
when  application  to  amend  should  be  made,  249. 
laches  looked  upon  with  disfavor,  249. 
new  matter  not  subject  of,  249. 

should  be  introduced  by  supplemental  bill,  249,  260. 
when  amendment  will  be  allowed  to  bill,  250. 
amendment  at  hearing  to  conform  to  proofs,  250. 
answer,  amendments  to  when  allowed,  251. 
amendments  at  the  hearing,  252-304. 

after  the  hearing,  253. 
allowed  by  appellate  court,  254. 
how  made  when  allowed,  255, 
the  effect  of  amendment,  252. 
stands  as  a  new  pleading,  256. 
not  allowed  when  makes  a  new  case,  257. 
greater  limitations  to  amending  answer  than  bill,  258. 
if  justice  demands  it  will  be  allowed,  258. 
answer  amending  at  hearing,  259. 

AMENDMENTS,     SUPPLEMENTAL     PLEADINGS     AND    REVIVOR, 
243-281. 
see  Supplemental  Pleadings,  260-270;  Revivob — Bills  of  Revivob, 
271-281. 

ANOMALOUS  PLEAS,  139. 
see  Pleas  in  Equity. 

ANOTHER  SUIT  PENDING,  144. 

see  Pleas  in  Equity. 
ANSWER,  181-211. 

when  to  be  interposed — nature  of,  181. 

is  twofold:  a  defense;  answer  to  interrogatories,  182. 

requisites  of,  183. 

(1)  must  be  full  and  complete,  183. 

(2)  must  be  positive  and  direct,  183. 

(3)  must  be  certain,  183. 


INDEX.  791) 

References  are  to  seetionfli 

ANSWER  (continued)  — 

(4)  not  argumentative  or  evasive,  183. 
(6)  not  scandalous  or  impertinent,  183, 

(6)  not  contain  inconsistent  defenses,  183. 

(7)  should  allege  facts,  not  conclusions,  183. 
defenses  which  may  be  interposed  by,  184. 

may  be  used  in  conjunction  with  other  defenses,  186. 
may  contain  several  defenses.  186. 
discovery  of  facts  elicited  by  bill,  187. 
when  need  not  make  discovery,  187. 
discovery  made  must  be  responsive,  188. 
when  there  are  several  defendants.  189. 

joint  or  several  answers,  189. 
frame  of  the  answer,  190. 

a  form  showing  several  parts  of,  190. 
signing  and  swearing  to,  191. 
waiver  of  sworn  answer,  192. 
compelling  an  answer,  193. 
amendments  to,  194. 
exceptions  to,  when  can  be  taken,  195. 
l(l)  for  insufficiency,  196. 

only  allowed  when  answer  under  oath  required  by  bill,  197. 
when  answer  to  part,  plea  to  part,  and  demurrer  to  part  of 

bill,  198. 
exceptions  to  answer  to  amended  bill,  199. 
effect  of  failing  to  file  exceptions,  200. 
demurrer  to  answer  unknown,  201. 
what  operates  as,  201. 
(2)  exceptions  for  scandal  and  impertinence,  202. 

excepting  to  answer  accompanying  plea  allows  plea,  203. 
form  of  exceptions,  204. 
submission  to  exceptions.  205. 
compelling  a  better  answer,  206. 
answer  as  evidence,  207. 
the  weight  of  evidence  of,  208. 
admissions  in  answer,  209. 

case  heard  on  bill  and  answer,  answer  conclusive,  209. 
answer  will  not  afford  affirmative  relief,  210. 
can  only  obtain  it  by  cross-bill,  210. 
some  exceptions  to  rule,  211. 

see  Cross-bill,  212;  Supplementai,  Answeb,  269. 

ANTIQUITY  OF  EQUITY  COURT— 
some  history  of,  4. 

APPEALS,  358-365. 

the  nature  of  the  appeal  In  equity,  358. 

distinguished  from  writ  of  error  in  law  cases,  358. 
writ  of  error  does  not  lie  to  remove  equity  cause,  358. 


800  INDEX. 

References  are  to  sections. 

APPEALS  (continued)— 

appeal  lies — final  decrees,  359. 

may  appeal  from  final  decree  but  not  from  interlocutory  order» 
359. 

decree  fully  settling  controversy  appealable,  359. 

decree  must  be  final  and  regular,  359. 

must  be  entered  and  become  recorded  in  the  cause,  359. 

how  finality  of  decree  settled,  359. 

decree  dismissing  bill  or  striking  from  files  appealable,  359. 

decree  granting  divorce  appealable,  359. 
by  whom  taken,  360. 

only  by  parties  affected  by  decree,  360. 

not  allowed  to  mere  fictitious  case,  360, 

all  interested  in  reversal  of  decree  may  appeal,  360. 

any  party  whose  rights  or  interests  are  injured  by  decree  may 
appeal,  360. 
procedure  in  obtaining  and  effecting  the  decree,  361. 

whole  record,  pleadings,  proofs,  must  be  before  appellate  court, 
361. 

hearing  of  appeal  is  tried  de  novo,  361. 

effect  of  appeal  to  lower  court,  361. 
dismissal  of  appeal,  362. 

when  will  be  dismissed,  362. 

some  reasons  for  dismissing  appeal  discussed,  362. 

if  irregularity  due  to  fault  of  officials  of  court  appeal  will  not 
be  dismissed,  362. 

failure  to  prosecute,  cause  for  dismissal,  362. 
notice  of  motion  to  dismiss  appeal,  362. 

nature  of  and  notice  to  adverse  party,  363. 

grounds  for,  must  be  stated  with  reasonable  certainty,  363. 
the  hearing,  364. 

nature  of  and  procedure  upon,  364. 

counsel  must  submit  printed  arguments  with  record,  364. 

no  additional  proofs  submitted  upon,  364. 

based  entirely  upon  records  and  proofs  from  lower  court,  364. 
the  decision  and  decree  of  the  court  on  appeal,  365. 

nature  of  decree  upon,  and  extent  of,  365. 
from  judgment  or  decree  on  demurrer,  130. 

APPEARANCE  OF  DEFENDANT,  89. 
defective  service  waived  by,  88. 
how  entered,  90. 

actions  paramount  to  voluntary  appearance,  91. 
the  effect  of  appearance,  92. 
compulsory  appearance,  93. 
how  entered  by  persons  under  disability,  94. 
husband  and  wife,  95. 
by  corporations,  96. 


INDEX. 


801 


References  are  to  sections. 

APPEARANCE  OP  DEFENDANT   (continued)  — 

infant  delendants  appear  by  guardian,  94. 

idiots,  lunatics,  etc.,  appear  by  guardian,  59,  94. 

of  defendant,  entitles  him  to  notice  of  all  proceeding,  100. 
ATTACHMENT  (see  Contempt.  397). 

may  proceed  by,  to  compel  appearance,  93. 

in  cases  for  discovery  to  compel  answer,  193. 

attaching  property  to  create  lien  in  creditors'  suits,  492. 

sufficiency  of  lien  by,  iu  creditors'  suits,  492. 
AUXILIARY  JURISDICTION,  6,  7,  10. 

under  it  no  relief  asked — simply  for  discovery,  10. 

AVERMENTS— 

in   bill,   answer,   plea,   see   Bill  in   Equity;    Answer;    Pleas   in 
Equity. 

BILL  IN  EQUITY— 

office  and  nature  of,  18. 

definition  and  certain  requirements  as  to  statement,  18. 

parties  to,  are  called,  19. 

an  information,  when,  20. 

how  divided — original  bills,  bills  not  original,  21, 

original  bills  divided:   (1)  praying  relief;   (2)  not  praying  relief,  22. 

definitions  of  kinds  of  bills,  22. 
how  original  bills  praying  relief  are  divided,  23. 

chart  of  equity  bill,  27. 
original  bills  not  praying  relief  are  divided,  24. 

not  original,  how  divided,  25. 
certain  rules  of  pleading  applicable  to,  26. 

facts  of  which  court  takes  judicial  knowledge,  need  not  state, 

26. 
public  acts,  need  not  state,  26. 
practice  or  procedure  of  court,  need  not  state,  26. 
ports  where  tide  ebbs  and  flows,  need  not  state,  26. 
boundaries  of  judicial  districts,  26. 
law  and  jurisprudence  of  other  states  and  foreign  states,  must 

state,  26. 
certainty,  not  so  strict  as  in  common-law  pleading,  26. 
general  certainty  the  rule  in  most  cases,  26. 
certain  things  must  be  accurately  stated,  26. 
a  chart  of  the  equity  bill,  27. 
nine  parts  of  bill  stated,  28. 

the  address — what  it  is,  etc.,  29. 

the  introduction — when  necessary,  office  of,  30. 

premises  or  stating  part,  31. 

must  state  all  essentials  of  case,  31. 
plaintiff  must  state  his  whole  case  in,  32. 
necessary  allegations  to  support  case,  33. 

(1)  subject  of  litigation  must  be  clearly  stated,  33. 

(2)  title  must  be  shown  in  complainant,  33. 

51 


802  INDEX. 

References  are  to  sections. 

BILL  IN  EQUITY   (continued)  — 

interest  shown  must  be  real  and  valuable,  S3. 

(3)  must  set  out  the  wrong  and  injury,  33. 

(4)  must  show  defendant's  claim  of  interest  and  his  lift* 
bility  for  the  wrong  and  injury,  33. 

form  and  manner  of  statement,  34. 

certain  maxims  must  be  followed,  34. 

setting  up  deeds,  mortgages,  contracts,  records,  etc.,  85. 

tender  of  performance  in  bill,  36. 

fraud — allegations  of,  37. 

must  not  be  multifarious,  39. 
when  held  to  be  multifarious,  39. 
double  aspect,  may  be  framed  with,  40. 
scandal  and  impertinence,  41. 

when  statements  so  considered,  when  not,  41. 
confederating  part,  42. 

not  required,  42. 
charging  part,  43. 

not  necessary,  43. 
how  formerly  used,  43. 
jurisdictional  clause,  no  longer  used,  44. 
interrogating  part — used  for  discovery  of  facta,  45. 
prayer  for  relief — special,  general,  46. 
praj-^er  for  injunction,  46. 
prayer  for  process,  47. 
drafting  the  bill,  65. 
the  necessary  parts  of  the  bill,  66. 
signing  and  verifying  the  bill,  67,  68. 
reasons  for  verifying,  68. 
a  form  of  equity  bill,  69. 
a  form  showing  several  parts,  70. 
when  answer  under  oath  or  otherwise  required,  71. 
filing  the  bill,  72. 

amending  after  default  avoids  all  decretal  orders,  103. 
see  Cross-bill,  212;   Revivor,  Bills  op,  271-281;  Bills  to  Remotk 
Cloud  from  Title,  425. 

BILL  OF  COMPLAINT,  18-72. 
see  Bill  in  Equity. 

BILLS  OF  DISCOVERY— 
nature  of.  22-24. 
demurrer  to,  118. 
plea  to  discovery,  170. 
several  pleas  to  discovery,  171. 

BILLS  OF  INTERPLEADER,  369-382. 
nature  and  object  of  the  action,  369. 
when  bill  properly'filed,  369. 
complainant  may  file  when  no  interest  In  fund  In  dispute,  369. 


INDEX. 


803 


References  are  to  sections. 

BILLS  OF  INTERPLEADER   (continued)  — 

complainant  a  mere  stakeholder  having  no  Interest  In  matter 

in  controversy,  370. 
must  be  entirely  indifferent  as  to  conflict  between  claimants, 
370. 
certain  exceptions  to  rule,  371. 

where  complainant  should  ascertain  and  subject  his  own  right 

to  property  in  question,  371. 
in  such  case  may  file  bill  in  nature  of  bill  of  interpleader,  371. 
examples  given,  371. 
as  to  title  of  claimants  to  the  property,  obligation  or  thing  in  con- 
troversy, 371. 
should  be  privity  of  title  or  contract  between  claimants,  372. 
where  titles  claimed  are  independent,  not  from  same  sourca, 

372. 
interpleader  not  maintainable,  372. 
rule  met  with  some  opposition,  372. 
real  ofBce  of  interpleader,  373. 

to   shield    party   from   claims   of   several   claimants   for   same 

thing,  373. 
not  from  double  liability,  but  double  vexation  In  respect  of  one 
liability,  373. 
Injunction  to  protect  plaintiff  from  a  multiplicity  of  suits,  374 

complainant  may  bring  the  amount  in  dispute  into  court  for  its 

disposal,  374. 
may  deposit  it  in  bank  subject  to  order  of  prevailing  claimant, 

374. 
may  tender  performance  for  benefit  of  prevailing  claimant,  374. 
when  on  filing  bill  may  have  temporary  injunction,  374. 
injunction   so   framed   as   not  to   deprive   parties   of  legal   or 
equitable  right,  374. 
plaintiff  should  tender  performance  of  the  duty  or  obligation  or  se- 
cure it,  375. 
this  a  requisite  to  decree  of  court,  375. 
parties  to  the  bill  of  interpleader,  376. 

person  having  the  fund  or  property  In  possession  party  plaint- 
iff, 376. 
persons  making  several  claims  to  property  in  controversy  par- 
ties defendrnt,  376. 
must  be  more  than  one  claimant,  376. 
the  bill  of  complaint,  377. 

subject  to  general  rules  applicable  to  bills  In  equity,  S77. 

plaintiff  must  show  the  thing  in  controversy,  377. 

that  he  has  no  claim  upon  it,  377. 

that  he  is  a  disinterested  holder,  377. 

that  he  has  deposited  or  is  ready  to  deposit  the  fund  or  perfomt 

the  duty,  as  court  may  order,  377. 
should  show  the  nature  of  claims  of  defendant,  377. 


804  INDEX. 

References  are  to  sections. 

BILLS  OF  INTERPLEADER   (continued)  — 

that  they  are  opposing  claims  against  which  he  is  entitled  to 

protection,  377. 
where  one  claimant  has  equitable  claim  and  other  legal  claim, 

377. 
that  plaintiff  has  doubt  as  to  which  claimant  is  entitled  to  the 

fund,  377. 
that  claims  of  defendants  are  derived  from  common  source,  377. 
when  bill  demurrable,  377. 
the  prayer,  378. 

should  be  no  other  relief  than  that  defendants  set  forth  their 

several  claims,  378. 
interplead  and  adjust  and  settle  the  same  between  themselves, 

378. 
cannot  claim  aflBrmative  relief  against  claimants,  378. 
only  ask  leave  to  pay  the  money,  or  deliver  the  property  or 

render  the  duty  to  the  one  entitled  to  it,  378. 
and  that  he  may  be  protected  against  all  claims  of  defendants, 

378. 
that  decree  for  interpleader  being  obtained,  he  may  be  out  of 

the  suit,  378. 
and  that  defendants  may  settle  their  respective  claims,  378. 
should  add  general  prayer  for  relief,  378. 
if  injunction  needed,  should  be  prayed  for,  378. 
when  bill  should  be  verified,  379. 
defenses  to  bills  of  interpleader,  380. 

(1)  by  demurrer,  380. 

(2)  by  plea,  when,  380. 

(3)  by  answer,  when,  380. 
the  replication  in  cases  of,  381. 

when  necessary,  381. 

what  issues  of  fact  raised  by,  381. 

if  defendants  do  not  deny  allegations  In  the  bill,  need  not  be 

filed,  381. 
In  such  case  hearing  on  bill  and  answer,  381. 
the  hearing  and  decree,  382. 

no  affirmative  relief  can  be  decreed  to  plaintiff  In  strict  inter- 
pleader, 382. 
hearing,  proofs  and  procedure,  similar  to  hearings  in  other 

cases,  382. 
proper  decree  in  favor  of  complainant  can  only  be  that  claim- 
ants interplead,  382. 
no  other  decree  except  to  dismiss  the  till,  382. 
BILLS    OF   REVIEW   AND    IN    THE   NATURE   OF   BILLS    OF    RE- 
VIEW, 341-357. 
the  nature  and  scope  of  the  bill,  341. 
object  is  to  procure  examination,  alteration,  or  reversal  of  decree 

after  enrolled,  341. 
the  grounds  of  the  bill,  342. 

ordinance  of  Lord  Chancellor  Bacon  noticed,  342. 


INDEX. 


805 


References  are  to  sections. 
BILLS  OF  REVIEW  AND  IN  THE  NATURE  OF  BILLS  OF  REVIEW 
(continued)  — 
three  grounds  upon  which  bill  can  be  sustained,  342. 

(1)  error  of  law  apparent  upon  face  of  the  decree,  etc.,  342. 

(2)  new  matter  which  has  arisen  since  the  decree,  342. 

(3)  newly  discovered  evidence  which  could  not  be  found  and 
produced  by  reasonable  diligence  before  decree  rendered,  342. 

errors  of  law  must  consist  of  violations,  statutory  enactments. 

or   recognized   established   principles   of   law   or   equity,   or 

settled  practice  of  the  court,  342. 
error  in  matter  of  form  not  sufficient,  342. 
error  of  law  should  appear  upon  the  face  of  the  decree,  342. 
error  of  judgment  as  to  facts,  343. 

not  permitted  to  show  error  in  adjudication  of  facts,  343. 

such  error  only  taken  advantage  of  on  appeal,  343. 

only  questions  open,  such  as  arise  upon  pleadings  and  decree 

without  reference  to  evidence,  343. 
how  far  findings  of  court  conclusive,  343. 
mere  irregularities  in  proceedings,  or  error  in  deduction  from 

evidence,  not  considered.  343. 
bill  founded  on  discovery  of  new  matter,  344. 

may  be  matter  which  has  arisen  since  the  decree,  344. 

as  newly-discovered  evidence,  344. 

comprises  facts  which  would  render  decree  void,  344. 

or  upon  which  court  determines  decree  unjust  and  Inequitable. 

344. 
newly-discovered  evidence,  345. 

must  show  that  new  matter  came  to  knowledge  of  applicant 
since  hearing  of  cause,  345. 

facts  that  with  reasonable  diligence  could  not  have  been  dis- 
covered,  345. 

evidence  must  be  material  and  not  cumulative,  345. 

of  such  nature  that  if  heard  at  hearing  it  would  have  occa- 
sioned a  different  decree,  345. 

If  evidence  vague  and  uncertain,  will  not  sustain  bill  of  review. 

345. 
some  prerequisites  to  filing  bill  of  review,  346. 
must  obey  the  decree— the  English  rule,  346. 
the  ordinance  of  Lord  Bacon,  346. 

obedience  and  performance  dispensed  with  under  certain  cir- 
cumstances, 346. 
Where  party  unable  to  pay  it  or  has  given  security  for  payment. 

346. 
where  execution  has  been  levied  for  its  collection.  346. 
but  if  for  possession  of  land,  possession  should  be  given  up. 

346. 

or  for  specific  performance  in  making  and  executing  convey- 
ance, 346.  J       „j 

or  where  performance  would  not  give  adverse  party  undue  ad- 

vantage,  346. 


80fi  INDEX. 

References  are  to  sections. 
BILLS  OF  REVIEW  AND  IN  THE  NATURE  OF  BILLS  OF  REVIEW 
(continued)  — 
other  requisites,  347. 

decree  must  appear  to  be  final,  347. 

bill  will  not  lie  to  change  consent  decree,  347. 

if  for  error  of  law,  must  appear  that  court  has  reached  er- 
roneous conclusion.  347. 

must  appear  by  allegations  in  bill  that  substantial  injustice  has 
been  done,  347. 

that  to  allow  it  to  stand  applicant  would  suffer  Injury,  347. 

that  if  case  reviewed  would  be  material  alteration  of  decree, 
347. 

will  not  lie  if  decree  has  been  affirmed  upon  appeal,  347. 

will  not  lie  to  review  decree  of  supreme  court,  347. 

must  appear  that  bill  filed  within  time  allowed,  347. 
application  for  leave  to  file  a  bill  of  review,  348. 

if  based  upon  matter  discovered  since  the  decree,  must  first 
obtain  leave  of  court,  348. 

If  on  grounds  of  error  apparent  on  face  of  decree,  leave  of  court 
not  necessary,  348. 
in  such  case  matter  of  right,  348. 

rests  in  the  sound  discretion  of  the  court,  348. 

application  for  leave  made  by  petition,  348. 

such  application  must  set  out  reasons  for  review,  348. 

must  state  nature  of  the  case,  348. 

the  decree  and  grounds  upon  which  bill  is  sought,  348. 

if  error  upon  face  of  decree,  error  should  be  explicitly  set  forth, 
348. 

if  on  newly-discovered  matter,  petition  should  describe  evidence 
distinctly  and  specifically,  348. 

should  state  when  discovered  and  bearing  on  decree,  348. 

not  sufficient  to  state  what  petitioner  expects  to  prove — must 
set  out  evidence  expects  to  establish,  348. 

better  practice  to  file  the  affidavits  of  persons  as  to  new  evi- 
dence, 348. 

findings  of  court  not  conclusive  on  rehearing  of  cause,  348. 

on  rehearing  of  cause,  facts  open  to  inquiry  and  investigation, 
348. 
hearing  of  petition  for  leave  and  order  thereon,  349. 

opposite  party  entitled  to  service  of  application,  349. 

affidavits  relied  upon  may  be  presented  by  both  parties,  349. 

the  whole  matter  on  hearing  laid  before  chancellor,  349. 

if  to  allow  rehearing  would  be  unconscionable  or  inequitable, 
application  will  be  dismissed,  349. 

if  petition  granted,  applicant  may  file  bill  as  prayed,  349. 
parties  to  the  bill  of  review,  350. 

all  parties  to  original  actions  should  be  made  parties,  350. 

party  not  interested  in  question  presented  cannot  file,  350. 

party  not  Injured  by  former  decree  cannot  file,  350. 

not  sufficient  that  decree  injurious  to  third  parties,  350. 


INDEX.  807 

References  are  to  sections. 

BILLS  OF  REVIEW  AND  IN  THE  NATURE  OP  BILLS  OF  REVIEW 

(continued)  — 

defendant  in  original  suit  may  file,  350. 

personal  representatives,  heirs,  executors,  administrators,  can 
file  bill,  350. 

other  persons  interested  and  in  privity,  devisees  and  remainder- 
men may  maintain  an  original  bill  In  nature  of  bill  of  re- 
view, 350. 
frame  of  bill  of  review,  351. 

should  set  out  former  bill  and  proceedings  thereon,  decree  and 
hearing,  351. 

must  allege  how  party  injured  or  aggrieved  by  it,  351. 

and  grounds  upon  which  right  to  review  is  claimed,  351. 

when  substance  of  proof  should  be  set  out,  351. 

If  for  newly-discovered  evidence,  what  must  be  set  forth,  351. 

when  supplemental  bill  may  be  added,  351. 

rules  as  to  signing,  filing,  service,  etc.,  similar  to  rules  as  to 
original  bill,  351. 

when  bill  multifarious,  351. 
1)111  in  the  nature  of  bill  of  review,  352. 

when  such  bill  permitted,  352. 
when  bill  to  impeach  the  decree  on  account  of  fraud,  353. 

such  bills  are  in  the  nature  of  an  original  bill,  353. 

fraud  alleged  raises  independent  issue,  353. 

all  parties  to  original  suit  and  their  representatives  should  be 
made  parties,  353. 

must  be  shown  there  is  a  meritorious  defense  to  an  original 
decree,  353. 
bills  to  carry  decrees  Into  execution,  354. 

nature  of,  and  when  proper,  354. 

by  whom  may  be  instituted,  354. 
when  should  the  bill  be  filed,  355. 

where,  when  and  effect  of,  355. 
defenses  to  bills  of  review,  356. 

generally  subject  to  same  defenses  applying  to  original  bills, 
356. 

may  demur,  plead,  or  answer,  356. 

demurrer  most  natural  defense  if  bill  based  on  errors  apparent 
on  face  of  decree,  356. 

demurrer  sustained  confirms  original  decree,  356. 

If  on  ground  of  newly-discovered  evidence,  may  demur,  856. 

or  may  controvert  facts  alleged  by  answer,  356. 

plea  proper,  if  former  decree  was  consent  decree,  856. 

If  it  appears  on  face  of  bill  may  demur,  356, 
the  hearing  on  bill  of  review,  357. 

If  bill  sustained,  decree  reversed,  357. 

if  bill  dismissed,  former  decree  affirmed  and  final,  357. 

when  court  may  make  final  decree  if  bill  sustained,  357. 

when  bill  of  review  will  be  dismissed,  357. 

allowed  as  to  some  of  the  parties,  dismissed  as  to  others,  357. 


808  INDEX. 

References  are  to  sectiona. 

BILLS  OF  REVIVOR,  271-281. 
see  Revivor,  Bills  of. 

BILLS  TO  QUIET  TITLE,  422-428. 

see  Bills  to  Remove  Cloud  fbom  Title. 

BILLS  TO  REDEEM,  477,  481. 

statutory,  and  not  confined  to  equity  court  in  many  of  the  states, 
477. 
is  especially  enforceable  in  equity  unless  statutes  to  the  con- 
trary, 477. 
what  the  bill  of  complaint  must  allege,  477. 
if  parties  have  had  opportunity  to  be  heard  in  foreclosure  suit 

it  becomes  res  adjudicata,  477. 
facts  alleged  must  be  original  and  of  nature  to  give  jurisdic- 
tion. 477. 
examples  showing  necessary  allegations,  477. 
fraud,  accident,  mistake — underlying  principles,  477. 
"he  who  seeks  equity  must  do  equity,"  477. 
BO  plaintiff  must  offer  to  pay  amount  due,  477. 
must  tender  performance  of  obligation  or  pay  the  amount,  477. 
weight  of  authority  not  necessary  to  do  more  than  allege  will- 
ingness and  readiness  to  pay  in  bill,  477. 
parties  to  a  bill  to  redeem,  478. 

an  enumeration  of  necessary  parties,  478. 
parties  complainant,  478. 
who  may  be,  478. 
examples  and  illustrations,  478. 

generally    right   to    become   complainant   follows   title   to 
property  mortgaged,  or  equity  of  redemption,  or  interest 
in,  478. 
parties  defendant,  478. 

generally  ownership  of  mortgage  dictates  who  shall  be,  478. 
the  rule  illustrated,  478. 
the  prayer  of  the  bill,  479. 

object  of  bill  generally  for  accounting  as  well  as  to  redeem,  479. 
accounting  to  determine  amount  of  payments,  rents,  profits, 

etc.,  involved,  479. 
so  prayer  for  accounting  and  to  redeem,  479. 
the  decree,  480. 

if  decree  for  redemption,  generally  referred  to  master,  and  to 

report  amount  due,  480. 
amount  ordered  paid  within  specified  time,  480. 
time  for  redemption  fixed,  480. 
left  in  sound  discretion  of  court,  480. 
statutes  of  limitation,  laches,  481. 

time  when  action  may  be  brought  largely  regulated  by  stat- 
ute, 481. 
equity  actions  not  altogether  governed  by  statutes  of  limita- 
tion, 481. 


INDEX.  809 

References  are  to  sections. 

BILLS  TO  REDEEM   (continued)  — 
cases  where  they  are,  481. 

by  analogy  more  or  less  follow  the  statute,  481. 
in  some  jurisdictions  applies  directly,  4S1. 
when  courts  must  exercise  sound  discretion,  481. 
bills  In  aid  of  execution  and  creditors'  bills,  486-501. 

see  Ceeditobs'  Bills  and  Bills  in  Aid  of  Execution. 
BILLS  TO  REMOVE  CLOUD  FROM  TITLE,  422. 

see  Rescission,  Cancellation,  Subbendeb  ob  Dischabge  of  Instru- 
ments, 422. 
equitable  jurisdiction,  422. 
how  rescission,  cancellation,  etc.,  applied,  423. 
equity  will  remove  cloud  from  title,  423. 
the  procedure  is  by  bill  in  equity,  424. 

set  up  fraud,  accident,  or  mistake  in  bill,  424. 
plaintiff  must  offer  to  do  equity  in  bill,  424. 
defenses  by  demurrer,  plea,  or  answer,  424. 
nature  of  remedy  to  remove  cloud,  425. 
are  called  bills  of  peace,  425. 
are  called  bills  to  quiet  title,  425. 
cloud  on  title  defined,  425. 
who  may  sustain  the  bill,  425. 
remedy  applies  to  a  void  pretended  title,  425. 
if  claimed  title  has  no  semblance  of  legality,  bill  will  not  lie, 

425. 
must  be  an  apparently  good  title  In  defendant,  425. 
adequate  remedy  at  law,  426. 

if  complete,  equity  will  not  take  jurisdiction,  426. 
remedy  not  to  establish  but  to  clear  from  incumbrance,  42S. 
enjoining  legal  proceedings,  426. 
Injunction  to  prevent  beclouding  the  title,  426. 
the  possession  of  the  plaintiff,  427. 

in  some  jurisdictions  possession  required,  427. 

the  reasons  why,  427. 

possession  must  be  peaceable,  427. 

where  one  forcibly  ejected,  his  bill  will  not  fail  for  want  of 

possession,  427. 
one  who  has  taken  forcible  possession  cannot  sustain  action  to 

quiet  his  title,  427. 
If  land  wild  and  unoccupied,  may  sustain  bill  without  actual 

possession,  427. 
by  statute  in  many  states  possession  not  necessary,  427. 
the  pleadings,  428. 

the  bill  of  complaint— what  it  must  allege,  428. 

not  necessary  to  set  out  deed  or  evidence  of  title  under  which 

plaintiff  claims,  428. 
sufficient  to  allege  that  he  is  the  owner  and  In  possession,  428. 
If  based  on  equitable  title,  must  set  it  out,  428. 
claim  of  defendant  must  set  out  so  that  it  can  be  determined, 
428. 


810  INDEX. 

References  are  to  sections. 

BILLS  TO  REMOVE  CLOUD  FROM  TITLE   (continued)— 

property  should  be  described  with  certainty,  428. 

other  facts  that  must  be  alleged,  428. 

prayer  of  the  bill,  428. 

when  temporary  injunction  asked  for,  428. 

answer  of  defendant  may  traverse  facts  alleged,  428. 

cross-bill,  when  proper,  428. 
CERTAINTY  AS  TO  ALLEGATIONS— 
of  subject-matter  of  litigation,  33. 
title  of  complainant,  33. 
the  wrong  and  injury  complained  of,  33. 
defendant's  claim  and  liability,  33. 
degree  of,  in  equity  cases,  26. 
certainty  to  common  intent  required,  26. 

see  Premises  oe  Stating  Pabt  of  Bill,  31-34;  StJinciENOT. 

CHANCELLORS— 

former  ecclesiastics,  3. 
ecclesiastics  until,  3. 
CHARGING  PART  OF  BILL— 

a  formal  part  of  the  bill  in  equity,  43. 
serves  no  purpose  in  modern  bill,  43. 
how  it  originated;  nature  of,  43. 
formerly  used  to  avoid  special  replication,  43. 
see  Bill  in  Equity. 
CHART  OF  DEFENSES  IN  EQUITY,  236. 
CHART  OF  EQUITY  BILL,  27. 
COMMISSIONERS  IN  CHANCERY,  319-322. 

see  Masters  and  Commissioners  in  Chancery. 
COMPLAINANT  IN  BILL,  WHO  SHOULD  BE,  51. 

all  persons  natural  or  corporate  whose  equitable  rights  have  been 

violated,  51. 
if  persons  naturally  complainants  refuse  to  become,  may  be  made 

defendants,  57. 
infants  as,  next  friend  for,  54. 
married  women  as,  55. 

idiots,  lunatics  and  weak-minded  persons  as,  66. 
see  Bill  in  Equity;  Parties. 

CONTEMPT— 

proceedings  in  cases  for,  397. 

generally  fixed  by  statute,  397. 

usually  follows  New  York  practice,  397. 

when  not  in  immediate  presence  of  court,  397. 

order  to  show  cause  why  should  not  be  punished  for,  397. 

other  method  by  granting  attachment  to  arrest  accused,  397. 

complaining  party  must  prove,  397. 

sworn  petition — aflBdavits — other  proof,  397. 


INDEX.  811 

References  are  to  secttons. 

CONTEMPT  (continued)  — 

service  of  petition  or  order  with  proofs,  397. 

if  alleged  misconduct  not  denied — order  of  court,  397. 

if  answering  order  to  show  cause,  accused  denies  misconduct,  897. 

maj'  refer  to  master  or  commissioner  to  take  proofs,  397. 

or  court  may  hear  and  determine,  397. 

if  proceeding  by  attachment  and  accused  appears  and  denies  mis- 
conduct, 397. 

court  will  cause  Interrogatories  specifying  facts  to  be  answered  by 
accused,  397. 

on  coming  in  of  answers  court  may  dispose  of,  397. 

or  refer  to  master  for  proof,  397. 

what  order  on  conviction  should  specify,  397. 

formerly  failure  to  appear  in  case  in  answer  to  subpoena  might  be 
adjudged  contempt,  74. 

may  be  resorted  to  to  compel  appearance,  93. 

answer  may  be  compelled  to  bill  by  proceedings  for,  193. 

United  States  court  regulates  by  rule,  193. 

the  proceeding  by  attachment,  193. 

CX)NTRACT— 

equity  will  not  enjoin  breach  of,  399. 

rule  does  not  apply  to  contracts  that  affect  the  public  at  large,  399. 

as  contracts  relative  to  control  of  railroads,  399. 

so  as  to  operation  of  all  public  agencies,  399. 

negative  contract,  court  will  enjoin  violation  of,  (4)  400. 

as  where  one  sells  good  will  of  business,  400. 

CONTRIBUTION,  EXONERATION  AND  SUBROGATION,    445-452. 
the  relation  and  nature  of  the  several  remedies,  445. 

are  closely  related  and  dependent  upon  each  other,  445. 

contribution  and  definition  of,  445. 

equities  of  contribution  and  exoneration,  when  and  how  arise. 
445. 

subrogation,  when  the  right  exists,  445. 

doctrine  rests  on  principle  that  where  parties  stand  In  equal 
right  law  requires  equality,  445. 

the  maxim  "equality  is  equity,"  445. 
the  jurisdiction  of  equity — contribution — subrogation,  446. 

peculiarly  an  equitable  remedy,  446. 

what  subrogation  is,  446. 
to  what  cases  subrogation  applies,  447. 

equality,  just  and  conscientious  dealing  foundation  of  remedy ,^ 
447. 

cases  in  which  it  applies,  447. 
a  mere  volunteer  not  entitled  to  remedy,  448. 

such  an  one  is  considered  a  mere  stranger — a  volunteer,  448. 
one  guilty  of  fraud  or  negligence  not  entitled  to  relief,  449. 

object  of  remedy  to  do  justice  and  subserve  equity,  449. 


812  INDEX. 

References  are  to  sections. 

CONTRIBUTION,  EXONERATION  AND  SUBROGATION   (con.)— r 
■when  the  remedy  is  complete,  450. 

must  be  complete  satisfaction  of  indebtedness  or  obligation, 
450. 

some  requisites  to  the  remedy,  450. 
pleadings — procedure — bill  of  complaint,  451. 
nature  and  requisites  of,  451. 
defenses,  452. 

may  be  by  demurrer,  plea  or  answer,  452. 

when  each  of  the  several  defenses  may  be  employed,  452. 

CORPORATIONS— 

as  parties  in  equity  suits,  64. 
how  appearance  entered,  96. 
COURTS  OF  LAW  AND  EQUITY,  CONFLICT  BETWEEN,  4. 
court  of  equity  a  conscience  court,  5. 
concurrent  jurisdiction,  6,  7,  9. 

CREDITORS'  BILLS  AND  BILLS  IN  AID  OF  EXECUTION,  486-501. 
creditors'  suits — kind  and  object  of,  486. 

equity  aids  in  collection  of  debt  only  where  no  legal  rem- 
edy, or  legal  remedy  exhausted,  486. 
equity  court  protects  equitable  rights  of  creditors  by  pre- 
venting fraudulent  appropriations  of  debtor's  property, 
486. 
the  nature  and  extent  of  the  proceeding,  486. 
the  origin  and  necessity  of  relief  by  the  proceeding,  486. 
oflBce  of  proceeding,  to  remove  fraudulent  obstructions  and 
aid  the  law  in  enforcing  collection,  486. 
these  actions  are  of  two  kinds,  486. 

(1)   judgment  creditors'  bills;    (2)   bills  in  aid  of  execu- 
tion, 486. 
discovery  as  well  as  failure  of  complete  legal  remedy  basis 

of  jurisdiction,  486. 
when  several  kinds  of  bills  invoked,  486. 
Judgment  creditors'  bills,  487. 

mere  creditor  at  large  cannot  support  bill,  487. 

bill  filed  to  reach  property  or  avails  of  it  which  cannot  be 

reached  by  execution  at  law,  487. 
kinds  of  property  and  interest  which  are  the  subject  of  such 

bill,  487. 
the  nature  and  extent  of  the  action,  487. 
some  requisites  to  the  filing  of  the  bill,  488. 

case  presented  must  belong  to  some  of  general  heads  of  equity 

jurisdiction,  488. 
as  fraud,  trust,  accident,  mistake,  account,  or  specific  perform- 
ance, 488. 
strictness  of  the  rule  somewhat  modified  by  statute,  488. 
creditor  must  invoke  and  exhaust  remedy  at  law,  488. 
must  be  judgment,  execution,  and  return  of  execution  nulla 
bona,  488. 


INDEX.  81^ 

References  are  to  sectiona 

CREDITORS'  BILLS  AND  BILLS  IN  AID  OF  EXECUTION   (con.)— 
tlie  judgment — the  execution  and  return,  489. 

judgment  must  be  irom  court  of  general  jurisdiction,  489. 
the  reasons  why,  489. 

as  to  judgments  from  justice  court — sufBciency  of,  489. 
necessity  of  return  of  execution  nulla  bona,  489. 
proceedings  upon  justice  court  judgments,  489. 
conclusiveness  of  return  of  execution  nulla  bona,  489. 
execution  must  run  its  entire  time,  489. 

if  judgment  against  debtor  is  a  foreign  one,  not  sufficient,  489. 
plaintiff  stands  as  mere  creditor  at  large,  489. 
when  judgment  of  federal  court  sufficient  in  state  courts  and  of 
state  courts  in  federal  courts,  489. 
judgments  of  state  courts  recognized  as  sufficient  in  federal 

courts,  when,  489. 
the   material   fact  to  be   determined   is,   has   complainant  ex- 
hausted his  remedy  at  law,  489. 
is  there  sufficient  and  competent  evidence  of  that  fact,  489. 
decrees  of  chancery  for  specific  sum  of  money  sufficient,  489. 
objections  to  the  regularity  of  the  judgment,  490. 

if  judgment  regular  upon  its  face  and  entered  on  records  of 

court,  deemed  sufficient,  490. 
exceptions  where  it  appears  court  rendering  judgment  had  no 

jurisdiction,  490. 
court  of  equity  will  not  allow  debtor  to  make  defense  which 
should   have  been  made  in  court  where  judgment  was  ob- 
tained, 490. 
in  proper  case  equity  will  look  behind  judgment  at  law,  490. 
cases  where  this  course  will  be  taken,  490. 

but  not  in  suits  upon  creditors'  bills  where  claim  has  been  es- 
tablished at  law,  490. 
application  as  to  irregularity  of  judgment  should  be  made  to 

the  court  rendering  it,  490. 
Where  after  bill  filed  debtor  is  permitted  by  court  of  law  to  at- 
tack judgment,  proceedings  will  be  stayed  in  equity  court, 
4£0. 
bills  in  aid  of  execution,  491. 

how  it  differs  from  creditors'  bill,  491. 
the  nature  and  effect  of,  491. 
the  theory  upon  which  it  is  filed,  491. 
filed  to  establish  lien  created  by  levy  of  execution,  491. 
bill  aimed  at  defendant's  legal  title  and  not  merely  his  equi- 
table interest,  491. 
filed  to  set  aside  convej-ance  or  incumbrance  as  fraudulent,  491. 
execution  in  such  cases  should  not  be  returned  unsatisfied,  491. 
the  bill  is  filed  to  establish  the  lien  of  the  execution,  491. 
where  issuing  of  an  execution  unnecessary,  491. 
judgment  in  some  states  creates  lien  upon  debtor's  property, 

491. 
in  such  case  levy  of  execution  not  necessary  to  support  bill,  491. 


814  INDEX. 

Ceferences  are  to  sections. 

CREDITORS'  BILLS  AND  BILLS  IN  AID  OP  EXECUTION   (con.)— 
sufficiency  of  lien  by  attachment,  492. 

authorities  not  harmonious  as  to,  492. 
subject  discussed,  and  cases  where  sufficient,  noticed,  492. 
parties  to  creditors'  bills,  493. 

plaintiffs  should  be  judgment  creditors  or  persons  who  own  the 
judgment,  493. 
when  several  creditors  may  unite  in  one  suit  in  equity 

against  common  debtor,  493. 
the  rule  where  bill  filed  in  aid  of  execution,  493. 
several  may  join  though  not  joint  owners  of  judgments, 

493. 
their  claims  may  be  several  and  bill  will  not  be  multifari- 
ous, 493. 
as  to  amount  sufficient  to  support  bill,  493. 
defendants  should  be  parties  against  whom  judgment  has  been 
recovered,  493. 
the  general  rule  as  to  who  should  be  made  defendants,  493. 
when  grantees  should  be  made  defendants,  493. 
when  incumbrancers  should  be  made  defendants,  493. 
the  form  of  the  bill,  494. 

what  must  be  alleged  in  creditors'  bills  to  convert  or  follow  as- 
sets of  debtor,  494. 
necessary  allegations  where  bill  is  in  aid  of  execution,  494. 
where  bill  is  filed  by  an  assignee  of  the  judgment,  494. 
the  prayer  of  the  bill,  what  it  should  contain,  494. 
bill  for  double  purpose — to  reach  equitable  assets  and  In  aid  of 
execution,  495. 
bill  for  double  purpose  may  be  filed,  495. 
the  practice  in  such  cases  suggested,  495. 
the  defense — demurrer — plea,  496. 

under  what  circumstances  defendant  should  demur  or  pleads 
496. 
the  answer,  497. 

when  defense  should  be  by  answer,  497. 
the  nature  of  the  answer,  497. 

bill  should  generally  call  for  answer  under  oath,  497. 
bill  usually  seeks  for  discovery  of  facts,  497. 
so  it  is  necessary  that  the  answer  should  be  under  oath,  497. 
debtor  and  alienees  generally  required  to  make  separate  an- 
swers, 497. 
complainant  generally  entitled  to  the  several  answers  of  the 

defendants,    497. 
not  only  as  to  the  property  and  their  relations  to  it,  but  as  to 

their  knowledge  of  facts  sought  for,  497. 
general  answer  without  oath  not  sufficient,  497. 
case  demands  full  and  complete  disclosure  of  facts,  497. 
where    defendant  is  bo7ia  fide  purchaser,  497. 
where  to  be  bona  fide  purchaser  is  complete  defense,  497. 


INDEX.  81S 

References  are  to  sections 

CREDITORS'  BILLS  AND  BILLS  IN  AID  OF  EXECUTION    (con.)— 
injunction  and  receiver,  498. 

injunction  and  receiver  generally  invoked  and  granted,  498. 

return  of  execution  unsatisfied  presupposes  misapplication  of 
property,  498. 

Injunction   unnecessary  to   restrain   further  alienation   or   in- 
cumbrance of  property,  498. 

where  bill  taken  as  confessed,  receiver  usually  appointed,  498. 

where  defendant  ordered  to  assign  and  transfer  all  property  to 
receiver,  498. 

when  required  to  submit  to  examination  before  master,  498. 

oral  examination  of  debtor  as  to  property  and  transfers,  498. 

when  defendant  may  move  to  set  aside  injunction  and  amend- 
ment of  receiver,  498. 
lien  obtained  by  creditors'  suit — priority,  499. 

filing  of  bill  and  service  of  process  creates  lien  upon  property 
of  judgment  debtor,  499. 

places  property  under  control  of  court,  499. 

not  permitted  to  be  withdrawn  by  subsequent  act  or  title  so  as 
to  defeat  the  bill,  499. 

subsequent  purchasers  take  subject  to  the  lien,  499. 

priority  of  lien  governed  by  time  of  filing  bill  and  serving  pro- 
cess, 499. 

creditor  who  first  files  bill  and  serves  process  will  have  priority 
over  others,  499. 

has  priority  even  though  others  first  obtained  decree,  499. 

right  of  intervening  creditors  in  this  respect  discussed,  499. 
the  decree,  500. 

limited  by  prayer  for  relief,  500. 

limited  to  case  made  by  bill  and  proof,  even  where  the  prayer 
is  for  genera:  relief,  500. 

decree  can  only  be  to  the  extent  warranted  by  equity  and  in  ac- 
cordance with  the  case  made  by  the  bill  and  proofs,  500. 

the  nature  and  extent  of  the  decree  generally  discussed,  500. 
the  form  of  the  decree,  501. 

the  several  kinds  of  decrees  applicable  to  these  cases,  501. 

decrees  applicable  mentioned  and  classified,  501. 

CROSS-BILLS,  212-227. 

nature  and  use  of  the  bill,  212. 
not  an  original  bill,  225. 

necessary  to  be  used  If  affirmative  relief  asked  for,  212. 
the  bill  is  filed  by  the  defendant  against  the  plaintiff,  212. 
other   persons    made    defendants    If   necessary    for   the    relief 

sought,  212. 
the  relief  sought  must  be  auxiliary  to  and  germane  to  the  main 

controversy,  212. 
filed  to  bring  all  the  matters  involved  In  original  suit  before  the 

court.  212. 


816  INDEX. 

References  are  to  sections. 

CROSS-BILLS   (continued)  — 

it  may  be  brought  either  for  discovery  or  to  aid  defense  to  the 

original  bill,  212. 
or  to  obtain  full  and  complete  relief  to  all  parties,  212. 
if  relief  prayed  in  the  bill  can  be  obtained  by  answer,  bill  will 

be  dismissed,  212. 
necessity  and  object  of  cross-bill,  213. 

avoids  bringing  an  independent  and  separate  action,  213. 
brings  into  one  litigation  the  whole  controversy,  213. 
always  auxiliary  and  dependent  upon  original  bill,  213. 
relief  sought  must  be  equitable,  214. 

must  be  equities  germane  to  and  growing  out  of  original  bill, 

214. 
if  relief  sought  be  not  equitable,  bill  demurrable,  214. 
parties  to  the  cross-bill,  215. 

only  filed  by  one  who  could  file  an  original  bill,  is  the  general 

rule,  215. 
seeming  exception  in  federal  court,  where  of  same  citizenship, 

215. 
as  to  rule  where  persons  not  parties  to  original  bill  may  be 

made  parties,  215. 
authorities  not  harmonious,  215. 
cases  cited  and  discussed,  215. 

by  weight  of  authority,  where  third  person  is  necessary  to  the 
settlement  of  the  controversy  he  may  be  brought  in  by  cross- 
bill, 215. 
English  judicature  act— new  parties  allowed,  when,  215. 
cross-bill  by  persons  not  parties  to  original  suit,  216. 

mere  strangers  to  the  litigation  not  permitted  to  intervene,  216. 
nor  could  they  be  made  parties,  216. 

how  third  parties  may  intervene  and  become  parties  to  cross- 
bill, 216. 
the  frame  of  the  cross-bill,  217. 
substance  or  body  of  the  bill,  218. 

the  bill  is  filed  after  the  answer  of  the  defendant,  218. 
is  used  to  obtain  affirmative  relief,  218. 

not  for  the  purpose  of  stating  defense  to  original  bill,  but  for  af- 
firmative relief  prayed,  218. 
should  therefore  contain  facts  upon  which  prayer  for  relief 

rests,  218. 
facts  should  be  alleged  as  though  it  were  an  original  bill,  218. 
must  make  out  an  equitable  case,  218. 
must  be  germane  to  the  original  bill,  218. 
the  prayer  of  the  bill,  219. 

asks  court  for  particular  affirmative  relief  sought,  219. 
generally,  if  separate  bill,  that  it  may  be  heard  at  same  time 

as  the  original  bill,  219. 
when  necessary  to  pray  for  process  to  bring  parties  in,  219. 


INDEX. 


References  are  to  sections. 


817 


CROSS-BILLS    (continued)— 

signing  and  verifying  the  bill,  220. 

same  rules  apply  as  to  original  bill,  220. 
filing  the  bill,  221. 

should  be  filed  in  the  court  where  original  bill  Is  pending,  221. 
some  rules  as  to  filing  the  bill,  221. 
leave  to  file  cross-bill,  222. 

some  authorities  have  held  must  have  leave,  222. 

usually  may  be  filed  when  affirmative  relief  necessary  to  settle 
the  controversy,  222. 
answer  in  the  nature  of  a  cross-bill,  222. 

this  is  only  allowed  by  statute,  223. 

the  nature  and  extent  of  such  an  answer,  223. 
process,  when  necessary,  224. 

when  necessary,  and  practice  in  the  several  courts,  224. 
defenses  to  cross-bill,  225. 

are  like  defenses  to  original  bill,  225. 

when  demurrer  will  be  sustained  to,  225. 

when  plea  should  be  filed,  225. 

when  an  answer  should  be  filed,  225. 
replication  of  complainant  in  cross-bill,  226. 

same  necessity  exists  for,  as  in  original  bills,  226. 
the  hearing,  227. 

the  original  and  cross-bill  are  generally  heard  together,  227. 

they  usually  constitute  but  one  case,  227. 

not  indispensably  essential  that  they  should  be  so  heard,  227. 

DAMAGES— 

equity  will  award,  when,  11. 

actions  where  damages  are  awarded,  459. 

awarding  of  in  equity  cases  incidental  to  procedure,  459. 

no  direct  remedy  for,  in  equity,  459. 

court  must  have  in  hand  case  belonging  to  equitable  jurisdiction 

in  order  to  grant,  459. 
some  examples  given,  459. 

upon  the  principle  that  once  having  jurisdiction  it  will  settle 
the  whole  controversy,  459. 

DECREE,  97,  106,  130,  180,  323,  340. 

corresponds  to  judgment  at  law,  323. 
differs  from  a  decretal  order,  323. 
divided  into:    (1)  final,  (2)  interlocutory,  323. 
(1)  final  decree,  324. 

when  no  further  question  or  direction  for  judgment  of  court, 

324. 
pro  confesso  cases,  how  brought  on  for  hearing,  331. 
same  as  other  cases,  331. 
of  foreclosure  and  sale,  final,  324. 
decree  nisi  final  if  determines  question  at  issue,  324. 

53 


818  INDEX. 

References  are  to  sections. 

DECREE   (continued)  — 

(2)   interlocutory  decrees,  325. 

how  differ  from  final  decree,  325. 

not  determination  of  issue,  325. 

usually  not  appealable,  325. 

other  distinguishing  features,  325. 
decrees  in  personam,  326. 

for  performance  of  some  act,  326. 
decrees  in  rem,  326. 

determines  the  status  or  title  of  thing,  326. 
decrees  nunc  pro  time,  326. 
consent  decrees,  326. 

not  judicial  determination,  rather  stipulation  of  parties,  326. 

bill  of  review  will  not  lie  to  change,  326. 

nature  of,  and  when  allowable,  326. 
some  essentials  to  a  valid  decree,  327. 

as  jurisdiction  of  subject-matter  and  parties,  327. 

if  no  jurisdiction,  court  will  refuse  to  proceed,  327. 

will  not  determine  rights  of  persons  not  made  parties,  327. 

will  not  render  final  degree  till  all  persons  necessary  are  made 
parties,  327. 

should  conform  to  allegations  and  prayer  of  bill,  327. 

if  general  prayer,  decree  limited  by  case  made,  327. 
the  frame  of  the  decree,  328. 

is  flexible  and  elastic,  conforming  to  object  and  subject-mat- 
ter of  bill,  328. 
consists  of  three  parts,  sometimes  four,  328. 

(1)  the  caption — stating  title  of  court  and  cause,  place  of  hold- 
ing court,  date  of  pronouncing  decree,  etc.,  328. 

(2)  the  recitals: 

former  English  rule  to  recite  pleadings,  evidence,  and  pro- 
ceedings, 328. 

this  practice  no  longer  exists,  328. 

names  pleadings  and  that  proofs  have  been  taken  and  con- 
sidered, 328. 

practice  in  the  United  States  court,  328. 

(3)  declaratory  part: 

the  use  and  nature  of,  328. 

this  clause  not  generally  used,  328. 

(4)  the  ordering  or  mandatory  clause,  328. 

contains  specific  directions  and  orders  of  court,  328. 

differs  according  to  questions  involved,  328. 

order  must  be  certain  and  specific,  328. 
drawing  and  settling  the  decree,  329. 
usual  practice  as  to  drawing,  329. 
settling  decree — practice  as  to,  329. 
notice  of  settling  decree,  329. 
should  be  at  least  for  reasonable  time,  329,  331. 
amendments  by  opposite  solicitor,  practice  respecting,  329. 
when  decree  will  be  filed  by  register,  329. 


INDEX.  819 

References  are  to  sections. 

DECREE   (continued)  — 

death  of  party,  decree  after,  330. 

death  of  party  usually  abates  cause,  330. 

but   if   decree   already   determined   by   court,   proceedings   not 

abated,  330. 
decrees  pro  confesso,  331. 
enrolment  of  decree,  332. 

until  enrolled  not  a  record  of  court,  332^ 
until  enrolled  considered  interlocutory,  332 
and  cannot  be  pleaded  in  bar,  332. 
manner  of  enrolment  and  when  deemed  enrolled,  332. 
nature  of  enrolment  and  practice,  332. 
United  States  court  provided  by  rule,  332. 
necessity  of  enrolment,  333. 

until  enrolled,  or  time  elapsed  when  considered  record  of  court, 

case  not  finally  settled,  333. 
must  be  enrolled  before  deed  can  be  executed  on  sale,  333. 
and  before  execution  can  issue,  where  bill  dismissed,  333. 
after  enrolled  must  be  said  to  be  in  force,  333. 
clerical  mistakes  arising  from  accidental  slip  may  be  corrected 

before  enrolment,  how,  333. 
dismissing  bill  without  prejudice,  effect  of,  158,  245,  318. 
some  changes  court  permitted  to  make  after  enrolment,  334. 
re-opening  the  cause — rehearing,  335-340. 
see  Rehearing  of  Equity  Cause. 

DECREE  ON  DEMURRER,  130. 
effect  of,  130. 
on  issue  by  plea,  180. 

DECREE  PRO  CONFESSO— 

formerly  court  could  not  grant,  97. 

defendant  failing  to  appear,  proceedings,  97,  98. 

history  of  practice  allowing  such  decree,  97,  98. 

pro  confesso  cases,  how  brought  on  for  hearing,  331. 

same  as  other  cases,  331. 

requisites  to  such  a  decree,  98. 

must  be  affirmative  showing  that  defendant  has  not  appeared.  331. 

or  appearing,  has  failed  to  answer,  331. 

default  for  failure  to  demur,  plead,  or  answer.  49. 

facts  admitted  by  defendant's  default,  101. 

hearing  of  pro  confesso  case,  331. 

court  will  hear  pleadings  and  proofs  and  make  decree  as  In  other 

cases,  331. 
if  defendant  an  infant  or  person  under  disability,  102. 
infant  cannot  be  prejudiced  by  default,  102. 
same  rule  applies  to  idiots,  insane  persons,  etc.,  102. 
if  bill  amended  after  default,  held  new  bill,  103. 
in  such  case  all  decretal  orders  void,  103. 
opening  or  setting  aside  default,  104. 
re-opening  decree  taken  pro  confesso  and  permitting  defense,  337. 


820  INDEX. 

References  ai'e  to  sections. 

DECREE  PRO  CONFESSO   (continued) — 

proceedings  generally  limited  to  decrees  not  enrolled,  337 

generally  rests  in  sound  discretion  of  court,  337. 

usually  allowed  where  irregularity  in  the  proceedings  and  unjust  to 

permit  it  to  stand,  337. 
or  upon  showing  of  surprise,  mistake,  or  accident,  337. 
or  where  interests  of  strangers  to  record  have  not  been  protected, 

337. 
federal  court,  practice  fixed  by  rule,  337. 
indulgence  of  court  not  readily  extended  to  set  aside,  105. 
procedure  for  setting  aside  order,  106,  331. 

DEEDS— 

mortgages,  contracts,  records,  etc.,  set  up  in  pleadings,  how,  35. 
DEFAULT— 

for  failure  to  appear,  demur,  plead,  or  answer,  98,  99. 
facts  admitted  by  defendant's  default,  101. 
opening  or  setting  aside  default,  104. 

indulgence  of  court  not  readily  extended  to  set  aside  decree,  105. 
procedure  for  setting  aside,  106. 
DEFENDANTS.    See  Parties. 
DEFENSES  IN  EQUITY,  107-236. 
the  several  kinds,  107. 

demurrer,  108-132.    See  Demuereb. 
plea,  133-180.    See  Pleas  in  Equity. 
answer,  181-212.    See  Answer. 
disclaimer,  228-235.    See  Disclaimeb. 
chart  showing  defenses,  236. 

DEMURRER,  108-132. 
nature  of,  108. 
a  speaking  demurrer,  109. 
admissions  by  the  demurrer,  110. 
extent  of  admissions,  111. 
kinds  of  demurrer: 

(1)  general;   (2)  special,  112. 
for  want  of  jurisdiction,  113. 

for  misjoinder  of  causes  of  action — multifariousness,  114,  115. 
for  defects  as  to  parties — misjoinder,  non-joinder,  115. 
because  of  incapacity  of  parties,  116. 
for  want  of  material  allegations,  117. 

failure  to  show  interest  in  complainant  renders  bill  demurrable,  33. 
wrong  and  injury  to  plaintiff  must  appear  in  bill,  if  not  demurrable, 

33. 
failure  to  show  defendant  liable  for,  renders  bill  demurrable,  33. 
may  be  as  to  discovery  sought  as  well  as  to  relief,  118. 
reasons  for,  to  bill  for  relief,  same  as  to  bill  for  discovery,  119. 
when  bill  for  both  relief  and  discovery,  may  demur  to  one  or  both, 

120. 
form  of  general  demurrer,  121.  '• 


INDEX. 


References  are  to  sections. 


821 


DEMURRER    (continued)  — 

special  demurrer,  nature  of,  122. 

ore  tenus,  nature  of,  123. 

joint  demurrer,  124. 

when  may  be  filed,  125. 

extent  of,  126. 

may  demur  to  part  of  bill,  plead  to  part,  and  answer  to  part,  126. 

to  bill  not  original,  127. 

to  bill  of  revivor  or  supplemental  bill,  127. 

to  cross-bill,  127. 

bringing  demurrer  to  hearing,  128. 

the  hearing,  129. 

facts  to  be  considered  only  those  alleged  in  bill,  129. 

the  judgment  or  decree  upon,  130. 

overruled  by  plea  or  answer,  131. 

effect  of  failure  to  demur,  132. 
DEMURRER  TO  DISCOVERY,  118-120, 

when  may  be  interposed,  118-120. 

rests  on  law  of  individual  rights,  118. 

as  well  as  upon  duty  to  protect  others,  118. 

when  discovery  would  be  a  breach  of  professional  confidence,  118, 

i:o. 

when  would  subject  defendant  to  penal  consequences,  118,  120. 

when  immaterial  to  purposes  of  suit,  118. 

because  matter  pertains  to  title  of  defendant,  118. 

that  bill  does  not  allege  an  interest  in  complainant,  119. 

that  facts  asked  are  immaterial,  119. 

that  to  answer  would  subject  defendant  to  criminal  prosecution,  120. 

or  to  a  penalty  or  forfeiture,  120. 

may  demur  to  discovery  and  answer,  or  plead  to  relief,  120. 

DEPOSITIONS.    See  Evidence,  299. 

DILATORY  PLEAS.     See  Pleas   in  Abatement,  143-146. 
DISABILITY  OF  PARTIES.    See  Pleas  in  Abatement,  146. 
DISCLAIMER.  228-235. 

the  nature  of,  228. 

must  be  complete  and  without  reserve,  229. 

when  it  can  be  interposed,  229. 

not  allowed  in  all  cases,  229. 

as  in  case  of  fraudulent  transfer,  229. 

when  both  an  answer  and  disclaimer  may  be  filed,  230. 

disclaimer  acts  as  estoppel,  231. 

if  filed  by  mistake,  court  may  permit  withdrawal,  232. 

signing,  verifying,  filing  and  serving,  233. 

decree  in  case  of,  234. 

costs,  235. 
DISCOVERY— 

biUs  of,  22,  24. 

demurrer  to  bills  of,  118-120. 


822  INDEX. 

References  are  to  sections. 

DISMISSING  BILL  WITHOUT  PREJUDICE— 
effect  of,  245,  318. 
if  defect  in  plaintiff's  bill  does  not  affect  equities  of  case,  court  will 

so  order,  318. 
will  so  order  where  defect  is  want  of  parties,  318. 
or  failure  to  pray  for  proper  relief,  318. 
or  where  error  can  be  remedied,  318. 
such  a  decree  no  bar  to  filing  another  bill  for  same  subject-matter, 

318. 
when  bill  so  dismissed  may  commence  another  suit  for  same  cause, 
318. 
DISSOLUTION     OF    PARTNERSHIPS,     ACTIONS     FOR,     AND    AC- 
COUNTING,  453-458.     See   Partnership,   Actions  foe  Dissolution 
OF,  AND  Accounting. 

DOUBLE  ASPECT— 

bill  may  be  framed  with,  40. 

see  Premises  or  Stating  Part  of  Bill. 
DOWER— ACTIONS  FOR  ASSIGNMENT  OF,  408,  409. 

history  and  development  of  dower,  408. 

the  procedure,  409. 
ECCLESIASTICS  AS  CHANCELLORS,  3. 

ENFORCEMENT  OF  DECREE.     See  Execution,  Writ  of,  357o. 
ENROLMENT  OF  DECREE.    See  Decrees,  332,  333,  334,  335. 
EQUITY  BILL.    See  Bill  in  Equity. 
EQUITY  COURT  A  CONSCIENCE  COURT,  5. 
EQUITY  JURISDICTION— 

what  it  embraces,  6. 

equity  having  obtained,  will  retain  to  award  complete  relief,  11. 

some  maxims  in  equity  applicable  to  pleadings,  12. 

EQUITY  OF  REDEMPTION,  460. 

see  Redemption;  Mortgages  or  Pledges,  Actions  fob  the  Foreclo- 
sure OF,  460-477;  Bills  to  Redeem,  477-481. 

EQUITY  PLEADING— 

as  distinguished  from  practice,  14. 

EVIDENCE,  297-304. 

admissions  by  demurrer,  110,  306. 

admissions  by  the  plea,  140. 

admission  by  failure  to  demur,  plead,  or  answer,  101. 

admission  by  defendant's  default,  101. 

taking  proofs  for  the  hearing,  297. 

changes  in  manner  of  taking  proofs  in  equity,  297. 

early  English  practice,  297. 

tendency  of  modern  practice,  297. 

practice  in  United  States  courts,  298. 

statutes  and  rules  providing  for,  298. 

as  to  taking  proofs  in  open  court  in  federal  courts,  298. 


INDEX.  S23 


References  are  to  sections. 


EVIDENCE   (continued)  — 

deposition  of  witnesses  beyond  the  jurisdiction,  299. 
admision  of  evidence,  300. 
pleadings  as  evidence,  301. 

the  bill  of  complaint  may  furnish  proof  for  defendant,  301. 

when  bill  filed  by  mistake  and  amended,  301. 

when   document  referred  to  for   greater  certainty  it  is  proof 

against  pleader,  301. 
answer  may  be  evidence  against  defendant,  301. 
answer  as  evidence,  207. 
weight  of  its  evidence,  208. 
admissions  in  answer,  209. 

case  heard  on  bill  and  answer,  answer  conclusive,  209. 
the  burden  of  proof,  302. 

some  presumptions  when  two  constructions  possible,  302. 
other  facts  presumed,  302. 
proof  confined  to  issue  made  by  pleading,  303. 
variance  between  proofs  and  pleadings,  effect  of,  304. 
when  court  will  allow  amendment  of  pleadings,  304. 
EXCEPTIONS  TO  ANSWER,  195-206. 
when  can  be  taken,  195. 

(1)  for  insufficiency,  196. 

only  allowed  when  answer  under  oath  required  by  bill,  197. 
when  answer  to  part,  plea  to  part,  and  demurrer  to  part  of  bill. 

198. 
to  answer  to  amend  bill,  199, 
effect  of  failing  to  file  exceptions,  200. 
demurrer  to  answer  unknown,  201. 
how  same  effect  as  demurrer  to,  obtained,  201. 

(2)  exceptions  for  scandal  and  impertinence,  202. 
excepting  to  answer  accompanying  plea  allows  plea,  203. 
form  of  excepting,  204. 

submission  to  exceptions,  205. 
compelling  a  better  answer,  206. 

exceptions  to  report  of  master  or  commissioner,  222. 
EXCLUSIVE  JURISDICTION  IN  EQUITY— 

general  classification  of  equity  jurisdiction,  7. 

nature  of,  and  how  determined,  8. 

example  illustrating,  8. 
EXECUTION,  WRIT  OF— 

decree  must  be  enrolled  before  issuing,  333. 

when  will  issue  to  satisfy  decree,  357a. 

for  costs  taxed,  357a. 

for  damages,  357a. 

for  deficiency  after  sale,  357a. 

in  cases  of  creditors'  bills  must  issue  for  debt  and  be  returned  nulla 
bona  to  support,  489. 

conclusiveness  of  return  in  such  cases.  489. 


824  INDEX. 

References  are  to  sections. 

EXECUTION,  WRIT  OF    (continued)  — 

when  return  nulla  bona  necessary,  489. 

must  run  entire  life  of,  before  return,  489. 

return  of  shows  legal  remedy  exhausted,  489. 

if  bill  in  aid  of  execution  writ  should  be  levied  when,  491. 

in  bill  in  aid  of  execution  writ  should  not  be  returned  unsatisfied, 
491. 

when  levy  of  execution  not  necessary  to  support  bill  in  aid  of,  491. 

where  bill  for  double  purpose — aid  of  execution  and  creditor's  bill, 
495. 
EXECUTORS,    ADMINISTRATORS,    AND    HEIRS    AS    PARTIES    IN 

EQUITY.    See  Parties,  64. 
EXONERATION.     See  Contribution,   Exoneration   and   Subrogation, 

445-452. 
FEIGNED  ISSUE,  314-318. 

nature  of,  how  made  up,  314,  315. 

discretion  of  court  as  to,  315. 

submitting  facts  to  jury  discretionary,  315. 

effect  of  verdict  or  finding  of  jury,  316. 

advisory,  not  binding,  316. 

instructions  to  jury  not  subject  to  exceptions,  317. 

court's  determination  at  hearing,  318. 
FILING  THE  EQUITY  BILL.    See  Bnx  in  Equity,  72. 
FINAL  DECREE— 

nature  of,  323,  324. 

differs  from  decretal  order,  323. 

corresponds  to  judgment  at  law,  323. 

final,  when  no  further  determination  by  court  necessary,  324. 

right  to  appeal  often  limited  to,  324. 

in  foreclosure  cases,  324,  331. 

how  differs  from  interlocutory  decree,  325. 

interlocutory  not  determination  of  issue,  325. 
see  Decrees. 
FOREIGN  JUDGMENT.    See  Creditors'  Bills,  489. 

FRAUD— 

equity  will  assume  jurisdiction  in  case  of,  6. 
allegations  of,  in  bill,  38. 
allegations  of,  in  answer,  183. 
answering  allegations  of,  in  bill,  183. 
allegations  of,  in  plea,  38. 

HEARING,  305-318. 

of  issue  by  demurrer,  128,  129,  130. 

of  issue  by  plea,  179,  180. 

when  issue  by  demurrer,  how  brought  to  hearing,  306. 

when  issue  by  plea,  307. 

bringing  cause  to  hearing,  305. 

regulated  by  statutes  and  rules  in  several  jurisdictions,  305. 


INDEX.  825 

References  are  to  sections. 

HEARING   (continued)  — 

some  of  the  ways  noticed,  205. 

well  pleaded  facts  admitted  by  demurrer,  306. 

plea  raises  issue  of  law  or  facts,  307. 

replication  puts  in  issue  facts  alleged  in  pica,  307. 

proofs  at  hearing,  or  by  master  as  provided  by  statute  and  rules 
of  practice,  307. 

when  on  bill  and  answer,  308. 

facts  alleged  in  answer  admitted,  308. 

when  case  may  be  noticed  for  on  bill  and  answer,  308. 

on  bill,  answer  and  replication,  309. 

when  hearing  had  on,  without  proofs,  304. 
final  hearing  on  pleadings  and  proofs,  310. 

how  cause  may  be  heard,  310. 

usual  manner  of  hearing  cause,  310. 

proofs  at  hearing  in  open  court,  310. 

comments  and  decisions  as  to,  in  United  States  courts  and  state 
courts,  310. 

matters  disposed  of  at  final  hearing,  311. 

all  interlocutory  orders  and  decrees,  311. 

conflict  in  state  and  federal  courts,  312. 
objections  which  may  be  taken  at  the  hearing,  313. 

which  cannot  be  raised  for  the  first  time  at  hearing,  313. 

certain  objections  that  should  be  raised  by  demurrer,  S13. 

amendments  allowed  at  hearing,  313. 
feigned  issue,  314. 

nature  of — how  made  up,  314,  315. 

submitting  facts  to  jury,  discretionary,  315. 

effect  of  verdict  or  finding  of  jury,  316. 

advisory,  not  binding  on  court,  316. 

Instructions  to  jury  not  subject  to  exceptions,  817. 
court's  determination  at  hearing,  318. 

will  order  a  decree,  318. 

dismissing  bill  without  prejudice,  effect  of,  318. 
decree,  whether  final  or  otherwise,  the  test,  318. 

HEIRS,    EXECUTORS    AND    ADMINISTRATORS    AS    PARTIES    IN 
EQUITY,  64. 

HISTORY  OF  EQUITABLE  REMEDIES,  2. 

HUSBAND  AND  WIFE.     See  Pabtees,  55-59;  Appeakance,  95. 

IDIOTS,     LUNATICS     AND     WEAK-MINDED     PERSONS     AS    COM- 
PLAINANTS,  56,    59. 
how  commence  suit,  56,  59. 
next  friend,  56. 
by  guardian  when,  56. 
defend  by  guardian,  59. 
court  will  appoint  on  its  own  motion,  when,  59. 

IMPERTINENCE.    See  Scandal  and  Impertinence. 


826  INDEX. 

References  are  to  sections. 

INFANTS  AS  COMPLAINANTS,  54. 
appointment  of  next  friend  for,  54. 
defendants  appear  by  guardian,  59,  94. 
cannot  be  prejudiced  by  default,  102. 
court  will  protect  his  interest,  102. 

INFORMATION— 

when  bill  in  equity  an,  20. 

when  subject-matter  concerns  state,  etc.,  20. 

the  relator,  20. 

INJUNCTIONS,  398-406. 
the  remedy,  398. 

writ  of,  not  in  rem  but  directed  to  person,  398. 
called  the  right  arm  of  the  court  of  chancery,  398. 
the  nature  of  the  writ,  398. 
cases  in  which  the  court  will  not  grant  an  injunction,  399. 

(1)  court  will  not  grant  unless  right  it  aims  to  secure  can  be 
determined  in  advance,  399. 

(2)  will  not  grant  to  protect  from  apparent  injury  which  may 
at  any  time  be  legalized,  399. 

(3)  will  not  grant  when  complete  and  adequate  remedy  at  law, 

399. 

will  refuse  to  grant  to  enjoin  a  trespass  merely,  399. 
Bome  exceptions  to  this  rule  noted,  399. 

as  where  trespass  a  continuing  one,  399. 

to  avoid  multiplicity  of  suits,  399. 

where  continuous  and  ruinous  and  damages  from  irrepar- 
able, 399. 

for  trespass  on  lands,  399. 
as  to  injunction  to  restrain  publication  of  libel,  399. 

English  and  American  rule,  399. 

general  rule  is,  writ  will  not  issue,  399. 

English  courts  by  statute  allowed  to  restrain,  399. 

some  discussion  and  criticism,  399. 

(4)  will  not  grant  if  likely  to  inflict  greater  injury  than  griev- 

ance complained  of,  399. 
or  where  injury  complained  of  is  slight  or  doubtful,  399. 
or  where  latter  depends  on  disputed  question  of  law,  399. 
not  granted  to  adjust  and  settle  rights  between  parties,  399. 

(5)  one  court  will  not  enjoin  another,  399. 

will  govern  and  restrain  parties  to  proceedings,  399. 

(6)  will  not  restrain  suit  or  proceeding  pending  in  court  of  sis- 

ter state  or  federal  court,  399. 
or  suit  in  court  of  co-ordinate  jurisdiction,  399. 
would  be  against  comity  of  states  and  public  policy,  399. 
cases  In  which  courts  of  equity  will  allow  injunctions,  400. 

enumeration  of  cases,  400. 
(1)  where  court   of  equity  will   restrain   proceedings   in   another 
court.  400. 


INDEX. 


References  are  to  sections. 


82^ 


INJUNCTIONS   (continued)  — 

will  not  restrain  prosecution,  punishment  or  pardon  of  crimes 

or  misdemeanors,  400. 
court  first  obtaining  jurisdiction  has  right  to  determine  cause, 

400. 

(2)  where  court  will  declare  and  enforce  a  trust  or  purely  equitable 

right,  400. 
will  protect  right  of  cestui  que  trust,  400. 
will  not  allow  party  to  whom  secret  process  confidentially  given 

to  disclose,  400. 
or  where  it  has  been  surreptitiously  obtained,  400. 
literary  productions,  plays,  private  letters,  etc.,  protection  by 

writ  of  injunction,  400. 
will  issue  to  restrain  payee  of  negotiable  instrument,  when,  400. 

(3)  will  restrain  multiplicity  of  suits,  when,  400. 
will  not  ordinarily  restrain  breach  of  contract,  400. 

(4)  but  will  restrain  breach  of  negative  promise,  400. 

will  restrain  a  party  from  doing  that  which  he  promised  not  to 

to  do,  400. 
examples  given,  400. 
some  apparent  exceptions,  400. 
C5)  to  restrain  breach  of  covenant  or  contract  afEecting  lands,  400. 
as  by  way  of  enforcing  restrictions,  400. 
as  a  covenant  not  to  sell  intoxicating  liquors  upon  deeded 

or  leased  land,  400. 
as  where  covenant  that  vendee  should  have  first  refusal  of 

land,  400. 
examples  given,  400. 

(6)  to  restrain  the  unlawful  or  Inequitable  conveyance  or  Incum- 

brance of  property,  400. 
"Where  result  would  be  irreparable  injury,  400. 
or  would  operate  as  a  fraud,  400. 

or  defeat  consummation  of  a  fraudulent  conspiracy,  400. 
examples  given,  400. 

(7)  to  restrain  a  corporation  from  violating  its  charter,  400. 
grounds  are,  corporation  is  trustee  of  rights  of  stockholders, 

400. 

will  enjoin  acts  or  conduct  ultra  vires,  400. 
abuse  of  corporate  franchise  may  be  prevented,  400. 

examples  given,  400. 
private  individuals  cannot  enjoin  corporation,  400. 

(8)  to  prevent  waste,  400. 

some  examples  given,  400. 

(9)  to  restrain  the  committing  of  a  nuisance  or  its  continuance,  400. 

will  restrain  commission  or  continuance  of  nuisance,  public 

or  private,  400. 
grounds  of  prevention  of  material  injury  to  property  or 

health,  400. 
some  of  the  most  common  cases  in  which  courts  have  exer- 
cised the  jurisdiction,  400. 


828  INDEX. 

References  are  to  sections 

INJUNCTIONS   (continued)  — 

(10)  to  enjoin  the  infringement  of  patents  and  copyrights  or  trade- 

marks, 400. 
nature  and  extent  of  the  remedy,  400. 
examples  and  cases  noted,  400. 

(11)  to  prevent  tortious  or  criminal  acts,  conspiracies  and  combinar 

tions,  400. 
nature  and  extent  of  the  remedy,  400. 
as  applied  to  strikes  of  labor  organizations,  400. 
several  kinds  of  injunctions,  401. 

(1)  mandatory  injunctions,  401. 

are  very  rarely  granted  before  final  hearing,  401. 

may  be  if  rights  of  parties  free  from  doubt  and  exigencies 
very  great,  401. 

granted  where  one  driven  from  management  of  property  by 
force  and  control  assumed,  401. 

some  examples  given,  401. 

granted  to  remove  wrongful  obstruction  to  a  train,  401. 

will  not  be  granted  where  rights  of  complainant  are  un- 
settled, 401. 

(2)  injunctions  that  are  preventive,  401. 

are  interlocutory  and  comprise  temporary  or  preliminary 

injunctions,  401. 
allowed  to  continue  during  pendency  of  suit  or  for  order  of 

court,  401. 
may  be  obtained  on  ex  parte  application  when  exigencies 

are  very  great,  401. 
as  where  to  postpone  till  notice  might  result  in  irreparable 
injury,  401. 
the  procedure,  how  obtained,  401. 
granted  to  preserve  property  and  rights  of  parties  in  statu  quo 

till  final  hearing,  401. 
issuance  of  preliminary  injunction  not  matter  of  right,  401. 
rests  in  the  sound  discretion  of  the  court,  401. 
the  procedure  and  the  bill  of  complaint,  402. 

there  must  always  be  a  pending  action  before  injunction  al- 
lowed, 402. 
bill  should  pray  for  injunction,  402. 
some  general  rules  as  to  issuance  of,  402. 
bill  of  complaint  should  be  sworn  to  by  plaintiff  who  flies  it, 

402. 
or  proof  of  allegations  by  other  persons,  402. 
obtaining  the  writ,  403. 

several  ways  discussed,  403. 

prerequisites  to  allowing  on  ex  parte  application,  403. 

by  obtaining  an  order  on  defendant  to  show  cause  why  writ 

should  not  issue,  403. 
the  procedure  under  such  an  order,  403. 


INDEX. 


References  are  to  sections. 


829 


INJUNCTIONS   (continued)  — 

application  by  petition  served  upon  the  defendant,  403. 
ttie  nature  of  the  petition  and  procedure  and  practice,  403. 
defendant  may  appear  and  oppose  the  application,  403. 
the  heai'ing  of  the  application,  403. 
the  order,  writ,  or  interlocutory  decree,  404. 

if  ex  'parte,  order  merely  direction  to  issue  on  filing  the  bill,  404. 
if  for  order  to  show  cause,  order  recites  facts  of  application  and 
directs  service  of  copy  with  affidavits  on  opposite  party,  404. 
the  procedure  and  practice  in  such  cases,  404. 
upon  obtaining  order,  party  entitled  to  writ  at  once,  404. 
if  delays  and  is  guilty  of  laches,  may  lose  benefit  of  order,  404. 
order  for  permanent  injunction  only  made  at  final  hearing,  404. 
injunction  bond,  405. 

regulated  more  or  less  by  statute,  405. 

where  no  statute,  court  has  large  discretionary  powers  as  to, 

405. 
cases  in  which  will  order  bond,  405. 
dissolution  or  modification  of  the  injunction,  406. 
the  procedure  and  practice  relating  to,  406. 
usually  upon  affidavits  accompanied  by  sworn  answer  of  defend- 
ant, 406. 
motion  to  dissolve  may  be  made  at  any  time  before  decree,  406. 
if  injunction  against  several  defendants,  any  one  or  more  may 

move  to  dissolve,  406. 
if  bill  on  demurrer  found  insufficient,  injunction  will  be  dis- 
solved, 406. 
appellate  court  may  continue  the  injunction,  406 
effect  of  sworn  answer  on  moving  to  dissolve  ex  parte  injunc- 
tion, 406. 

INSANE  PERSONS— 

appear  in  equity  court  as  defendants,  by  guardian,  59. 
see  Idiots,  Lunatics  and  Weak-minded  Persons. 

INTERLOCUTORY  APPLICATIONS  AND  PROCEEDINGS,  282,  296. 
nature  of— made  by  motion  or  petition,  282. 

may  be  made  orally  in  certain  cases— when  should  be  written,  282. 
see  Motions,  283-288;  Petitions,  289-296. 

INTERLOCUTORY  DECREE,  324,  325. 

see  Decree;  Final  Decree. 
INTERPLEADER.    See  Bills  of  Interpleadee,  369-382. 

INTERVENTION,  294-296. 

what  it  is — how  obtained,  294. 

bringing  in  new  parties,  62,  63. 

what  petition  for,  should  show,  295. 

must  present  a  case  of  substantial  equity,  295. 

defenses  to  petition  for  intervention,  296. 


830  INDEX. 

References  are  to  sections. 

INTRODUCTION— 

a  formal  part  of  bill  in  equity,  30. 

introducing  complainant,  his  residence,  and  character  in  which  he 

sues,  30. 
in  United  States  court  introduces  both  parties,  giving  residence,  30. 
this  in  United  States  court  often  relied  upon  for  jurisdiction,  30. 

JOINDER,  MISJOINDER,  NON-JOINDER— 

joinder  of  complainants,  (1)  60. 

misjoinder  of  complainants,  (2)  60. 

nonjoinder  of  complainants,  (3)  60. 

joinder  of  defendants,  (1)  61. 

misjoinder  of  defendants,  (2)  61. 

non-joinder  of  defendants,  (3)  61. 

advantage  of,  when  taken  by  demurrer,  115-146. 

when  by  plea,  (2)  146. 

JUDICIAL  NOTICE— 

certain  facts  unnecessary  to  allege  because  of,  26. 

need  not  aver  public  acts,  26. 

or  facts  of  which  court  has  judicial  knowledge,  26. 

such  as  geographical  boundaries,  26. 

boundaries  of  states,  26. 

divisions  of  the  state  where  court  is  sitting,  26. 

practice  of  court  in  which  cause  is  pending,  26. 

facts  of  public  nature  that  are  generally  understood,  26. 

ports  where  tide  ebbs  and  flows,  but  must  aver  jurisprudence  of 

foreign  states,  26. 
certain  presumptions,  302. 
see  Pbesumptions. 

JURISDICTION  OF  EQUITY  EXERCISED  WHEN— 
conclusive,  concurrent,  auxiliary,  6. 
assumed  in  case  of  fraud,  accident  and  mistake,  6. 
equity  having  obtained  will  retain  it,  11. 
maxims  in  equity  applicable  to,  12. 
demurrer  for  want  of,  113. 
pleas  to  jurisdiction,  144. 

nature  of  and  reasons  for,  144. 

that  cause  not  an  equitable  one,  144. 

that  parties  cannot  litigate  in  the  particular  court,  144. 

that  cannot,  because  another  suit  pending,  144. 

LEAVE  OF  COURT— 

to  file  bill  of  review,  348. 
application  to  obtain,  348. 
application  by  petition,  348. 
what  it  must  contain,  348. 
when  a  matter  of  right,  348. 

see  Bills  of  Review  and  Bii,ls  in  the  N.\Tn?E  of  Bills  of  Re- 
view. 


INDEX. 


831 


References  are  to  sections. 

LEGAL  AND  EQUITABLE  REMEDIES,  L 
LIBEL— 

as  to  injunction  restraining,  399. 

English  and  American  courts  not  in  harmony,  399. 

English  courts  have  held  injunction  will  issue,  399. 

cases  collected  and  discussed  in  United  States  court  case,  399. 

holdings  of  English  courts  result  of  statutes,  399. 

use  of  injunction  in  such  cases  should  be  carefully  exercised,  399. 

American  courts  universally  refuse  to  grant  writ,  399. 

MANDATORY  INJUNCTION,  401. 
see  Injunction. 

MARRIED  WOMEN— 
as  complainants,  55. 
see  Pabties. 
MARSHALING  SECURITIES,  482-485. 
the  equitable  doctrine,  482. 

"equality  is  equity;"  "he  who  seeks  equity  must  do  equity," 

482. 
it  is  the  protecting  of  securities  and  directing  application  of 

assets,  482. 
the  rule  where  one  has  lien  upon  two  or  more  funds,  482. 
when  equity  protects  creditor  who  has  lien  upon  but  one  fund, 

482. 
rule  applied  to  mortgages,  482. 
applied  to  insolvent  partnership  estates,  482. 
court  will  not  trench  upon  settled  rights  or  prejudice  settled 

interests,  482. 
facts  that  must  appear  before  remedy  enforced,  482. 
closely  connected  with  doctrine  of  inverse  order  of  alienation, 
482. 
when  doctrine  not  observed— subrogation,  483. 

when  security  destroyed  or  infringed  without  reason,  doctrine 

of  substitution  applied,  483. 
some  cases  in  which  doctrine  is  applicable,  483. 
when  a  paramount  creditor  releases  security  held  by  him  alone,  484. 
cannot  release  security  so  as  to  injure  junior  lien  holder,  if  he 

has  knowledge  of  facts,  484. 
where  negligently  and  wilfully  releases  so  as  to  render  subro- 
gation impossible,  lien  on  double  charged  fund  released,  484. 
one  must  deal  with  his  own  so  as  not  to  unnecessarily  injure 

another,  484. 
the  principle  discussed— examples  given,  484. 
enforcement  of  the  doctrine,  485. 

the  enforcement  of  doctrine  is  in  equity  court,  485. 

by  usual  equity  procedure,  485. 

where  a  threatened  disregard  of  principal,  junior  lien  holder 

may  ask  to  be  impleaded  if  case  pending,  485. 
injunction  is  often  resorted  to  by  filing  a  bill  if  necessary,  485. 


832  INDEX. 

References  are  to  sections. 

MARSHALING  SECXJRITIES   (continued)  — 

when  necessary  and  proper,  defendant  in  an  equity  case  may 

file  a  cross-bill  to  enforce,  485. 
rule  that  senior  creditor  not  to  be  injured  or  unjustly  delayed 

always  applicable,  485. 

MASTERS  AND  COMMISSIONERS  IN  CHANCERY,  319-322. 

the  master  in  chancery— something  of  origin  and  history,  319. 

duties  ministerial,  320. 

reports,  nature  of,  320. 

not  conclusive,  though  carry  great  weight,  320. 

subject  to  approval  of  court,  320. 

authority  limited  to  order  of  reference,  320. 

court  cannot  refer  whole  matter  to  hear,  try  and  determine,  321. 

cannot  delegate  authority  to  determine  the  cause,  321. 

objections  and  exceptions  to  report,  321. 

nature  of  exceptions,  322. 

MATTERS  IN  PAIS— 
what  is  meant  by,  161. 
pleas  founded  on,  classified,  161. 

(1)  plea  founded  upon  a  release,  162. 
when  may  plead,  162. 

when  anticipated  defense  alleged  in  bill  must  meet  and  deny, 
162. 

(2)  pleas  founded  on  stated  account,  163. 
nature  of  plea  and  when  interposed,  164. 
some  requisites  of,  164. 

(3)  plea  of  settled  account,  165. 

nature  of  and  when  may  be  interposed,  165. 

receipts,  attack  for  fraud,  165. 

when  plea  should  be  supported  by  answer,  165, 

(4)  plea  of  an  award,  166. 

when  may  plead  an  award,  166. 
must  be  complete  submission,  166. 

if  fraudulent  proceedings  —  corrupt  arbitrators,   decision    In- 
duced by  fraud  or  mistake,  166. 
may  meet  award  by  plea  of  fraud,  mistake,  etc.,  166. 

(5)  plea  of  purchase  for  value  without  notice,  167. 
when  such  plea  available,  167. 

person  having  notice  may  benefit  by  want  of  to  intermediate 

party,  when,  167. 
plea  in  such  case,  167. 

(6)  a  plea  of  title  in  defendant,  169. 

cases  where  applicable  grouped — three  heads,  169. 

MAXIMS  IN  EQUITY— 

applicable  to  jurisdiction,  12. 

MISJOINDER— 

of  causes  of  action,  demurrer  for,  114. 
of  parties,  demurrer  for,  115. 

see  Joinder,  Mis.toindeb,  Non-joindeb. 


INDEX.  833 

References  are  to  sections. 
MISTAKE— 

equity  will  assume  jurisdiction  on  account  of,  6. 

see  Refobming  a  Contract,  Deed,  ob  Written  Obx-ioation,  *17- 
421. 

MORTGAGES   OR   PLEDGES,   ACTIONS   FOR   THE   FORECLOSURE 
OF,  460-477. 
mortgage  foreclosure — the  equity  jurisdiction,  460. 
some  history  of  the  equity  of  redemption,  460. 
why  necessary  to  foreclose  mortgage,  460. 
"equity  regards  substance  rather  than  form,"  460. 
the  nature  and  purpose  of  the  foreclosure,  461. 

is  twofold,  461. 

to  realize  amount  due  by  sale  if  necessary,  401. 

and  to  foreclose  equity  of  redemption,  461. 

two  forms  of  foreclosure,  461. 

a  strict  foreclosure,  461. 

the  nature  and  effect  of,  461. 

a  foreclosure  decreeing  equity  of  redemption  barred  by,  461. 

the  nature  and  extent  of,  461. 
when  the  right  to  foreclose  accrues,  462. 

when  proceedings  may  be  commenced,  462. 

when  default  in  some  conditions  of  the  mortgage,  462. 

as  to  condition  to  pay  accrued  interest,  462. 

as  to  entire  debt  becoming  due  from  failure  to  pay  interest,  462, 
Bome  limitations  and  exceptions,  463. 

when  mortgagor  prevented  from  paying  by  fraud,  accident  or 
mistake  chargeable  to  complainant,  463. 

or  where  complainant  has  knowledge  of  the  fraud,  accident  or 
mistake,  463. 

where  time  of  payment  has  been  extended,  463. 
the  forum,  4G4. 

whether  action  is  local  or  transitory,  464. 

at  early  period  regarded  as  transitory,  464, 

now  only  prevails  in  few  jurisdictions,  464. 

general  rule  in  state  and  federal  courts,  action  is  local,  464. 

where  property,  as  a  railroad,  is  in  different  states,  464. 

held  the  jurisdiction  is  where  a  portion  is  situated,  464. 

general  discussion  of  the  subject,  464. 

as  to  party  to  foreclosure,  464. 
parties  to  the  action — complainant,  465. 

rules  as  to  parties  in  equity  apply,  465. 

all  persons  who  will  be  affected  by  decree  prayed  for  should 
be,  465. 

owner  of  mortgage,  mortgagee  or  assignee,  the  owner  of  mort- 
gage debt,  should  be  party  complainant,  465. 

if  such  owner  deceased,  then  his  personal  representative,  465. 

joint    owners    or    several    owners    of   different   notes   secured, 
should  be,  465. 

generally  assignor  need  not  be,  465. 

exception  where  he  still  retains  interest,  465. 
53 


834  INDEX. 

References  are  to  sectiong. 

MORTGAGES    OR   PLEDGES,   ACTIONS    FOR   THE    FORECLOSURE 

OF   (continued)  — 

trustee  where  mortgage  given  to  secure  bonds,  465. 

trustee  refusing,  bondholders  may  be,  465. 

need  not  join  all  shareholders — rule  one  for  many,  etc.,  465. 

in  United  States  court  by  rule,  465. 
defendants — generally  all  having  interest  in  equity  of  redemption, 
466. 

all  incumbrancers  at  time  of  suit,  466. 

If  mortgagor  has  not  assigned  equity  of  redemption  he  is  an 
indispensable  party,  466. 

generally  who  should  be  made  defendants,  466. 

in  cases  of  trust  deeds,  466. 

persons  claiming  adverse  title  not  properly  defendants,  46t). 
the  bill  of  complaint,  467. 

what  must  be  alleged,  467. 

must  show  by  proper  allegations  the  indebtedness  or  obliga- 
tion that  is  secured,  467. 

that  it  is  due  and  who  is  the  owner,  467. 

not  necessary  to  state  full  particulars  and  circumstances  of 
the  debt,  467. 

sufficient  to  allege  execution  and  delivery  of  note,  bond  or  con- 
tract, 467. 

if  written  contract,  the  substance  of  it,  467. 

should  allege  the  default  of  the  mortgagor,  467. 

if  mortgage  given  by  administrator  or  trustee,  467. 

not  necessary  to  set  forth  proceedings  authorizing  such  an  one 
to  mortgage,  467. 

enough  to  allege  order  of  court  in  substance,  467. 

if  foreclosure  commenced  by  assignee,  facts  should  be  set  out, 
467. 

only  necessary  to  allege  legal  import  and  effect  of  assignment, 
467. 

if  foreclosure  for  failure  to  pay  interest,  necessary  allegations, 
467. 

premises  should  be  correctly  described,  467. 

improper  description  of,  not  cured  by  prayer  for  general  re- 
lief. 467. 

where  debt  secured  by  executing  and  delivering  deed  absolute, 
deed  foreclosed  as  mortgage,  467. 

allegations  in  the  bill,  467. 

bill  may  ask  to  have  mistake  in  deed  or  mortgage  corrected, 
467. 

such  bill  not  multifarious,  467. 

prayer  of  the  bill,  467. 
defenses,  468. 

may  be  by  demurrer,  plea  or  answer,  468. 

cases  where  several  defenses  applicable,  468. 

the  usual  defenses,  nature  and  extent  of,  468. 


INDEX.  835 

References  are  to  sections. 

MORTGAGES    OR    PLEDGES,   ACTIONS    FOR   THE   FORECLOSURE 
OF   (continued)  — 
where  fraud  is  relied  upon  as  defense,  468. 
where  alleged  that  other  liens  than  those  agreed  upon  were 

conveyed  to  mortgagor,  468. 
title   to   premises   cannot  be   settled   and   determined  in   fore- 
closure, 468. 
not   available   as   defense  except   where   mortgagor   has   been 

evicted,  468. 
or  where  title  has  been  extinguished  and  eviction  may  be  had 

at  any  time,  468. 
mortgagor  not  permitted  to  prove  failure  of  his  own  title  to 

premises  mortgaged,  468. 
corporation  mortgagor  not  permitted  to  deny  corporate  exist- 
ence, 468. 
fraudulent  representations  as  to  value  of  property  may  be  re- 
lied upon,  468. 
defenses  which  may  be  made  to  note,  available  in  actions  for 

foreclosure  of  mortgage  securing  it,  468. 
examples  where  doctrine  applied,  468. 
mutual  mistake  as  defense  in  foreclosure.  468. 
examples  in  which  applied,  468. 
mistakes  of  law  not  generally  ground  of  defense,  468. 
exception   where   misrepresentation   or   concealment   made   by 

those  in  confidential  relations,  468. 
usury  as  a  defense,  468. 
compelling  foreclosure  of  mortgage,  469. 

subsequent  mortgagee  cannot  compel,  469. 

his  only  remedy  to  tender  amount  due  on  prior  mortgage  and 

obtain  rights  of  prior  mortgagee,  469. 
junior  mortgagee  cannot  file  bill  to  foreclose  his  own  and  prior 

mortgage,  469. 
prior  mortgagee  may  hold  security  as  long  as  mortgage  is  un- 
paid, 469. 
junior  mortgagee's   only  remedy  to  pay  and   discharge  prior 

mortgage,  469. 
bondholder  cannot  compel  foreclosure  till  mortgage  due,  and 

trustee  requested  to  do  so,  469. 
if  trustee  requested  and  refuses,  individual  bondholder  may  sus- 
tain action,  469. 
defenses  by  cross-bill,  470. 

when  cross-bill  may  be  resorted  to,  470. 
nature  of,  in  foreclosure  suits,  470. 
proceedings  in  foreclosure  before  final  hearing,  471. 

as  to  injunctions  and  receiver  in  such  proceedings,  471. 
■when  injunctions  may  be  issued,  when  receivers  appointed,  471. 
security  will  not  be  allowed  to  be  unduly  diminished.  471. 
when   necessary  for  preservation   of   mortgaged   property,   re- 
ceiver appointed,  471. 


836  INDEX. 

References  are  to  sections. 

MORTGAGES   OR   FLEDGES,   ACTIONS   FOR   THE   FORECLOSURE 
OF  (continued)  — 
appointment  of  receiver  in  sound  discretion  of  court,  471. 
appointment  frequently  made  in  foreclosure  of  railroad  mort- 
gages, 471. 
the  rehearing  in  foreclosure  suits,  472. 

cannot  foreclose  by  advertisement  and  in  equity  at  the  same 

time,  472. 
equity  will  not  assume  jurisdiction  where  other  proceedings 

commenced,  472. 
or  where  judgment  has  been  obtained  in  suit  at  law,  472. 
except  where  execution  is  returned  unsatisfied  in  whole  or  in 

part,  472. 
and  it  appears  that  defendant  has  no  property  to  satisfy  exe- 
cution, 472. 
reason  for  rule,  plaintiff  must  exhaust  remedy  at  law,  472. 
when  reference  made  to  master  or  commissioner,  472. 
the  decree  and  order  confirming  sale,  473. 
when  court  will  make  final  decree,  473. 
what  the  decree  determines — extent  of,  473. 
of  the  nature  and  form  of  the  decree.  473. 
application  of  amount  received  upon  sale  of  property,  473. 
as  to  personal  judgment  against  defendants  for  deficiency,  473. 
the  deed  of  conveyance  to  purchaser,  473. 
order  of  confirmation,  how  obtained,  473. 
practice  with  reference  to,  473. 
order  of  sale — Inverse  order  of  alienation,  474. 

property  sold  in  inverse  order  of  alienation,  474. 
what  is  meant  by  inverse  order  of  alienation,  474. 
the  rule  stated  and  applied,  474. 
redemption  of  mortgaged  property,  475. 
what  equity  of  redemption  is,  475. 
defined  and  illustrated.  475. 
estate  or  interest  represented  by,  475. 

applies  to  every  mortgage  without  regard  to  form  of  instru- 
ment, 475. 
whether  it  be  in  form  a  mortgage,  or  a  deed,  absolute  or  in 

trust.  475. 
right  to  redeem  cannot  be  waived  or  defeated  by  terms  of  in- 
strument. 475. 
or  by  contemporaneous  agreement,  475. 
to  whom  the  right  to  redeem  belongs,  475. 
redemption  of  entire  mortgage  and  not  of  part,  476. 
redemption  must  be  of  entire  mortgage  debt,  476. 
one  who  owns  a  part  of  mortgaged  premises  cannot  re- 
deem as  to  part  by  paying  proportionate  amount,  476. 
a  bill  to  redeem,  477-481. 
see  Bills  to  Redeem. 


INDEX.  837 

References  are  to  sectlona. 

MOTIONS,  283-288. 

nature  and  kinds  of,  283. 

(a)  motions  of  course,  283. 

(b)  special  motions,  283. 

these  divided  into  (1)  ex  parte  motions;  (2)  motions  upon  no- 
tice to  opposite  party,  283. 

(1)  ex  parte  motions,  284. 

in  what  cases  allowable,  284. 

(2)  special  motions,  on  notice  to  opposite  party,  285. 
in  what  cases  required,  285. 

what  it  must  contain  and  specify,  285. 

notice  of,  285. 

who  may  make  the  motion,  286. 

anj'  person  in  cause,  286. 

not  by  party  in  contempt,  286. 
service  and  proof  of  service  of  motion,  287. 

what  proof  should  contain,  287. 
see  Petition,  289-296. 

MULTIFARIOUSNESS— 

nature  and  definition  of,  39. 

when  a  bill  is,  39. 

a  bill  is  which  contains  two  or  more  distinct  objects,  39. 

if  one  object  but  several  subjects,  is  not,  39. 

may  be  for  relief  against  several  defendants,  39. 

if  several  subjects  not  connected,  bill  is,  39. 

bill  may  be  framed  with  double  aspect,  40. 

may  be  in  alternative  and  not  multifarious,  40. 

not  so  if  sets  up  distinct  inconsistent  causes  of  action,  40. 

demurrer  for  multifariousness,  39,  114,  115. 

when  subject  of  plea,  146. 
MULTIPLICITY  OF  SUITS— 

equity  will  assume  jurisdiction  to  avoid,  6. 

equity  will  enjoin,  (3)  399,  (3)  400. 
NEW  PARTIES— 

bringing  in,  62. 

by  cross-bill,  215,  216. 
see  Intervention. 
NEXT  FRIEND  FOR  INFANT  COMPLAINANT— 

appointed  how — when,  5-11. 

court  will  not  proceed  till  one  appointed,  54. 

see    Infants    as    Complainants;    Parties    to   Bill— Iniants; 
Complainants  in  Bill,  Who  Should  be— Infants  as. 

ORDER  FOR  PUBLICATION— 

service  by,  85. 

validity  of  judgment  under  such  service,  86. 

allowable  in  divorce  cases— actions  in  rem,  87. 
ORIGINAL  BILLS,  21-24. 


838  INDEX. 

References  are  to  sections. 

OVERRULING  DEMURRER— 

judgment  or  decree  overruling,  130. 

if  demurrer  to  whole  bill  sustained,  is  final  decree,  may  be  appealed 

from,  130. 
if  defect  in  bill  can  be  cured  by  amendment,  130. 
amendment  when  general  demurrer  sustained,  130. 
if  judgment  that  demurrer  be  overruled  defendant  must  answer,  130. 
decree  on  case  made  in  bill  not  granted  on  overruling  demurrer,  130. 
demurrer  overruled  by  answer,  131. 

OVERRULING  PLEA— 

if  insufficient,  plea  will  be  overruled,  180. 
if  sufficient  but  untrue  will  be  overruled,  180. 
effect  of  overruling,  180. 
when  ordered  to  stand  as  answer,  180. 
leave  of  court  to  answer,  180. 

PARTIES,  19,  48-64. 

to  the  bill  of  complaint,  called,  19. 

who  should  be  made  parties — general  rule,  48. 

court  will  not  settle  rights  of  if  not  brought  in,  48. 

to  bring  all  in — to  settle  whole  controversy  aim  of  court,  48. 

divided  into  three  classes,  49. 

(1)  formal;   (2)  necessary;   (3)  indispensable,  49. 
may  be  reduced  to  two  classes;   (1)  proper;   (2)  indispensable,  49. 
exceptions  to  rule  that  all  interested  must  be  made  parties,  50. 

(1)  when  parties  very  numerous,  50. 

(2)  when  parties  absent  from  jurisdiction,  50. 

(3)  where  certain  interested  parties  are  unknown,  50. 

(4)  where    authority   of    personal   representative   of   deceased 
party  disputed,  50. 

complainant — who  should  be,  51. 

in  foreclosure  actions,  465. 

if  will  not  consent  to  be  complainants  may  be  made  defendants, 
51. 

must  have  actual  interest,  52. 

one  for  all,  or  a  part  for  many,  53. 

Infants  as  complainants,  54. 
married  women  as,  55. 

idiots,  lunatics  and  weak-minded  persons  as,  56. 
joinder,  misjoinder,  non-joinder  of  complainants,  60. 
defendant — all  persons  natural  or  artificial,  57. 

in  foreclosure  cases,  466. 

some  exceptions  to  general  rule,  58. 

(1)  persons  against  whom  plaintiff  cannot  have  a  decree, 
58. 

(2)  United  States  cannot  be  made  a,  58. 

(3)  state  cannot  be,  in  its  own  courts,  58. 

(4)  foreign  states,  or  their  sovereigns,  cannot  be,  58. 


INDEX.  839 

References  are  to  sections. 

PARTIES   (continued)  — 

(5)   founded  on  eleventh  amendment,  58. 
as  to  persons  partially  incapacitated,  59. 
married  women,  infants,  insane  persons,  etc.,  59. 
joinder,  misjoinder,  non-joinder  as,  61. 
bringing  in  new  parties,  62. 

intervention — application  of  the  rule,  63. 
in  cross-bills,  215. 
some  observations  as  to  parties,  64. 
corporations  as  parties,  64. 
trustees  and  cestuis  que  trvst,  64. 
heirs,  executors,  and  adminit;trators,  64. 
demurrer  for  misjoinder  of,  115. 
for  non-joinder,  115. 
for  incapacity  of,  110. 
see  Bill  in  Equity. 

PARTITION,  410-416. 

jurisdiction  in  actions  for,  410. 

the  nature  of  the  action  and  proceedings  in,  410. 

whether  legal  or  equitable,  discussed,  410. 

largely  regulated  by  statutes,  410. 
the  subject-matter  of  the  procedure— the  property,  411. 

may  be  personalty  or  realty,  411 . 

power  of  court  as  to  partitioning  minerals,  411. 

as  to  partitioning  oil  or  gas  wells,  411. 
■who  may  enforce  partition,  412.  ,  ■,  .  . 

general  rule,  only  by  persons  in  possession  or  having  right  to 
possession,  412. 

not  by  persons  claiming  adversely,  412. 

but  where  court  has  obtained  jurisdiction,  will  retain  for  settle- 
ment of  whole  controversy,  412. 
the  bill  of  complaint,  413. 

allegations  it  should  contain,  413. 

property  must  be  correctly  described  in,  413. 

and  the  interests  of  each  party  therein  set  forth,  413. 
descriptions  must  be  sufficiently  certain  that  court  might  make 

If  property  cannot  be  partitioned  in  kind,  should  be  so  alleged 

in  bill  of  complaint,  413. 
allegations  in  bill  should  set  forth  reasons  why,  413. 
bill  may  contain  more  than  one  object  if  relief  sought  is  inci- 
dent to  proceedings,  413. 
as  where  an  accounting  for  rents  and  profits  is  sought,  413. 
or  specific  performance  of  contracts,  413. 
examples  given  where  bill  not  multifarious,  413. 
bill  may  pray  for  quieting  title  to  property,  413. 
defenses  In  partition,  414. 

may  be  by  demurrer,  plea,  or  answer,  414. 
cases  requiring  different  defenses  given,  414. 


840  INDEX. 

References  are  to  sections. 

PARTITION   (continued)  — 

default  of  defendant  and  procedure,  415. 

the  practice  in  such  cases,  415. 
the  hearing  and  decree  or  order,  416. 

the  procedure  and  practice  therein,  416. 

may  be  a  decree  for  partition  in  kind,  416. 

or  to  sell  property  and  divide  proceeds,  when,  416. 

there  may  be  an  allowance  for  improvements  made  on  the  prop- 
erty in  certain  cases,  416. 

may  set  off  portions  of  improved  property  to  certain  parties,  in 
lieu  of,  when,  416. 

when  money  to  be  paid  is  called  owelty,  416. 

.commissioners  for  partition  appointed,  416. 

proofs  taken  by,  respecting  the  property,  416. 

the  report  of  commissioners  in  partition,  416. 

the  procedure  and  practice  concerning,  416. 

confirmation  of  report  of  commissioners,  416. 

final  decree  confirming  report,  416. 

as  to  deeds  and  conveyance  of  parties,  one  to  another,  416. 

if  will  not  so  deed,  decree  will  stand  in  place  of,  416. 

if  necessary  a  receiver  may  be  appointed  in  cases  of,  416. 

PARTNERSHIPS,     ACTIONS     FOR     DISSOLUTION     OF,     AND    AC- 
COUNTING, 453-458. 
the  equitable  jurisdiction  in  partnership  cases,  453. 

equity  has  conclusive  jurisdiction  to  decree  dissolution  of  part- 
nership, 453. 

it  may  order  an  accounting  and  adjustment  of  financial  affairs 
and  wind  up  business  of,  453. 

it  may  appoint  receivers  to  take  possession  of  assets  and  entire 
business,  excluding  all  members  of  firm,  453. 

may  issue  writ  of  injunction  when  necessary  to  enjoin  and  ex- 
clude members  of  firm  from  meddling  with  settlement,  453. 

receiver  only  appointed  where  nature  of  case  is  complex  and 
necessity  great,  453. 

mere  dissatisfaction  of  one  partner  not  sufficient  ground  for  bill 
to  dissolve,  453. 

Interference  of  court  of  equity  one  of  absolute  necessity,  45s. 
dissolution  of  partnership,  454. 

no  distinction  in  partnerships  as  to  indissolubility,  454. 

every  partnership  dissoluble,  whether  for  limited  or  unlimited 
term,  454. 

no  court  can  force  one  to  continue  as  a  partner  against  his  will, 
454. 

court  may  interfere,  compelling  existence  for  short  time,  where 
irreparable  injury  would  otherwise  result,  454. 
the  equitable  remedy,  455. 

the  remedy  afforded  is  based  upon  fraud,  455. 

not  merely  fraudulent  appropriation  of  funds,  455. 


INDEX. 


841 


References  are  to  sections. 
PARTNERSHIPS,  ACTIONS  FOR  DISSOLUTION  OF,  AND  ACCOUNT- 
ING  (continued)  — 
but  includes  failure  to  grant  to  a  copartner  rights  he  is  en- 
titled to,  455. 
examples  where  equitable  remedy  attaches,  455 
universally  admitted  that  partners  are  bound  to  be  true  and 

faithful  to  each  other,  455. 
certain  infringement  of  rights  noticed,  455. 
equity  once  assuming  jurisdiction  will  settle  the  whole  contro- 
versy, 455. 
when  court  will  dismiss  the  bill,  455. 
Bome  conclusions  as  to  the  action  and  its  application,  456. 

while  partner  may  refuse  to  continue,  if  without  just  cause 
must  answer  for  injury,  will  be  liable  for  whatever  damages 
his  acts  occasion,  456. 
when  not  liable  for  damages,  456. 
when  both  parties  found  derelict  in  duty,  456. 
the  pleadings— the  bill  of  complaint,  457. 
no  particular  form  of  pleadings,  457. 

what  the  bill  of  complaint  should  show  in  stating  part,  457. 
if  injunction  or  receiver  prayed  for,  facts  upon  which  plaintiff 

relies  for  order  must  be  set  forth  with  certainty,  457. 
if  not  positively  averred,  must  be  shown  by  affidavits  and  proofs 

attached  to  bill,  457. 
prayer  for  dissolution  of  partnership,  457. 
prayer  for  injunction  and  receiver  if  desired,  457. 
the  bill  should  pray  for  an  accounting,  457. 
object  of  bill  not  restricted  to  dissolution  of  partnership  and 

an  accounting,  457. 
when  third  parties  who  have  become  involved  in  transactions 

of  concern  made  parties,  457. 
where  property  of  concern  has  been  fraudulently  disposed  of  to 
third  parties,  457. 
the  defense,  458. 

not  unlike  usual  and  ordinary  defenses  in  equity,  458. 
may  be  by  demurrer,  plea,  or  answer,  458. 
when  the  several  defenses  applicable,  458. 

PETITION,  289-296. 

proceedings  by,  289. 

distinction  between,  and  motions,  289. 

petition  defined,  289. 

form  of  petition,  290. 

stating  part  and  prayer  of,  290. 
serving  petition  and  notice  of  hearing,  291. 

filing,  291. 

proof  of  service  of  notice,  291. 

if  an  answer  is  filed  to  petition,  petitioner  may  reply,  291. 

petition  and  answer  should  be  on  oath,  291. 


842  INDEX. 

References  are  to  sections, 

PETITION   (continued)  — 

proof  upon  which  it  is  heard,  292. 

usually  by  affidavits,  but  court  may  take  oral  proof,  292. 

use  of  the  petition,  293 

intervention — who  may  intervene,  294. 

the  petition  for,  295. 

defenses  to  petition  for  intervention,  295. 

see  Inteuvention,  294-296. 

PLEA  DIFFERS  FROM  ANSWER,  136. 

PLEA  DIFFERS  FROM  DEMURRER,  135. 

PLEA  STANDS  AS  ANSWER  WHEN,  180. 

PLEADING  AS  DISTINGUISHED  FROM  PRACTICE— 
what  is  meant  by  pleadings  in  equity,  13. 
as  distinguished  from  practice,  14. 

PLEAS  IN  ABATEMENT,  143-146. 
defined  and  classified,  143. 

they  are — to  the  jurisdiction;   to  the  person  of  complainant  or  de- 
fendant; to  the  bill,  143. 

(a)  to  the  jurisdiction,  144. 

see  JtTRiSDicTiON  OF  Equity — Exeecised,  when;   Pleas  to 
Equity  Bill. 
three  reasons  foundation  of  piea,  144. 

cause  not  within  equitable  jurisdiction,  144. 

parties  have  no  right  to  litigate  in  the  particular  court,  144. 

no  right  to  litigate  in  court  where  bill  is  filed  because  an- 
other suit  pending,  144. 

(b)  pleas  to  the  person,  145. 

to  the  party  complainant,  145. 
to  the  party  defendant,  145. 

(c)  pleas  to  the  bill.  146. 

does  not  question  jurisdiction  or  parties  or  liability,  146. 

hut  contends  that  the  particular  bill  cannot  be  sustained,  146. 

that  it  will  not  support  decree  asked,  146. 

(1)  that  there  is  another  suit  pending  for  same  subject-matter, 

146. 
what  plea  must  show  as  to  this,  146. 
some  requisites  to  sustain  such  a  plea,  146. 
a  pending  suit  at  law,  not  available  plea,  146. 

(2)  that  bill  defective  for  want  of  proper  parties,  146. 
what  must  be  shown  to  be  available,  146. 

(3)  that  bill  does  not  embrace  the  whole  subject  of  litigation, 

146. 
when  demurrer  may  be  invoked  in  these  cases,  146. 

(4)  that  the  bill  is  multifarious,  146. 

see  Pleas  to  Equity  Bill. 

PLEAS  IN  BAR.  147-169. 

nature  and  definition  of,  147. 
kinds  of,  148. 


INDEX.  843 

References  are  to  sections. 

PLEAS  IN  BAR  (continued)  — 

founded  upon  bar  created  by  statute,  149. 
classified  as — pleas  of  statute  of  limitations,  149. 
of  statute  of  frauds,  149. 
statutes  private  or  public,  149. 
statute  of  limitations,  pleas  of,  150. 
nature  of,  and  when  invoked,  150. 
laches  as  a  defense,  151. 
relation  of  to  statute  of  limitations,  151. 

when  case  within  exceptions  to  statute — reasonable  excuse  for  de- 
lay, 152. 
statute  of  limitations  in  cases  of  trust,  153. 
when  debt,  trust  fund  due  trustee,  not  defense,  153. 
when  due  for  cestui  que  trust,  153. 

no  adverse  claim  between  trustee  and  cestui  que  trust,  when,  153. 
pleas  of  statute  of  frauds,  149,  155. 
pleas  founded  on  private  or  public  statutes,  156. 
form  of  pleading  several  statutes,  157. 
not  necessary  to  set  out  statute  in  plea,  157. 
pleas  founded  on  matters  of  record,  158. 
when  matter  determined  by  judgment  or  decree,  158. 
where  bill  alleges  fraud  in  obtaining  former  Judgment  or  decree,  159. 
nature  of  plea  of  former  judgment  or  decree  in  such  cases,  159. 
when  judgment  or  decree  foreign  or  domestic,  160. 
pleas  founded  on  matters  in  pais,  161. 
classified  as,  161. 

(1)  pleas  founded  on  a  release,  162. 

(2)  on  stated  account,  163. 

substance  of  plea  of  account  stated,  164. 

(3)  of  a  settled  account,  165. 
nature  of  and  when  available,  165. 

(4)  of  an  award,  166. 

how  pleaded — some  requisites,  166. 

(5)  of  purchase  for  value  without  notice,  167. 
nature  of  and  when  available,  167. 

person  not  affected  by  notice — when  no   notice  to  inter- 
mediate party,  168. 

(6)  of  title  in  defendant — grouped  under  three  heads,  169. 
by  will,  conveyance,  adverse  possession,  169. 

PLEAS  IN  EQUITY,  133. 
nature  of.  133. 

a  pleading  which  meets  complainant's  case  by  some  one  fact  or 

defense,  133. 
as  that  action  is  barred  by  statutes  of  limitations  or  frauds,  133. 
that  there  is  another  suit  pending,  133. 
may  be  by  matter  of  avoidance,  133. 
for  want  of  jurisdiction,  133. 
personal  disability  in  the  plaintiff,  133. 
that  the  subject-matter  of  the  case  is  res  adjudicata,  13^ 
want  of  equity  when  depends  on  single  point,  133. 


84:4  INDEX. 

References  are  to  sections. 

PLEAS  IN  EQUITY   (continued)  — 

the  plea  should  contain  but  one  defense,  134. 

not  the  office  of  the  plea  to  deny  the  allegations  in  the  bill,  134. 

should  not  intrench  upon  office  of  answer,  134. 
the  plea  differs  from  a  demurrer,  135. 

demurrer  depends  on  matter  apparent  upon  the  face  of  the  bill, 
135. 

plea  rests  upon  defects  not  appearing  on  face  of  the  bill,  135, 

rests  on  matter  dehors  the  bill  or  foreign  to  it,  135. 

facts  of  the  plea  must  be  proven  if  not  admitted,  135. 

demurrer  admits  facts  well  pleaded,  135. 
the  plea  differs  from  an  answer,  136. 

plea  is  based  upon  a  reasonable  defense,  136. 

the  answer  meets  each  allegation  of  the  complaint,  138. 

answer  may  raise  any  number  of  defenses,  136. 
the  extent  of  the  plea,  137. 

generally  must  meet  the  whole  case,  137. 

but  may  plead  to  part,  demur  to  part,  and  answer  to  part,  137. 
necessary  averments,  138. 

all  necessary  averments  to  bring  out  the  single  defense  in  plea 
must  be  set  forth  in  it,  138. 
a  division  of  pleas  based  upon  facts  alleged,  139. 

(a)  a  pure  plea,  139. 

sets  up  matter  of  fact  outside  the  bill,  139. 

as  admitting  facts  of  bill  alleges  a  release,  139. 

or  that  there  has  been  a  settlement  of  entire  claim,  139. 

depends  on  matters  dehors  the  bill,  139. 

must  depend,  as  other  pleas,  on  single  point  of  defense,  139. 

(b)  negative  pleas  or  pleas  not  pure,  139. 

based  on  denial  of  single  salient  fact  in  the  bill,  139. 
as  denial  of  plaintiff's  interest  in  subject-matter,  139. 

(c)  anomalous  pleas,  139. 

meet  allegations  in  bill   made  in  anticipation  of  the  de- 
fense, 139. 
as  where  bill  anticipates,  it  will  be  met  by  defense  of  re- 
lease, 139. 
admissions  by  the  plea,  140. 

admits  every  well  pleaded  fact  not  controverted  by  it,  140. 
plea  raises  two  questions: 

(1)  are  the  allegations  of  fact  true,  140. 

(2)  if  true,  are  they  sufficient  to  constitute  a  defense,  140. 
the  plea  overruled  by  answer,  141. 

cannot  plead   and   answer,  or  plead  and   demur  to   the  same 

matter,  141. 
by  plea,  asks  judgment  that  he  be  excused  from  answering  the 

part  covered  by  plea,  141. 
pleas  to  the  relief,  142. 

two  classes  of — in  abatement  and  in  bar,  142. 


INDEX. 


References  are  to  sections. 


845 


PLEAS  IN  EQUITY   (continued)  — 

pleas  in  abatement  defined  and  classified,  143. 

do  not  deny  cause  of  action  set  forth  in  the  bill,  143. 
dispute  power  of  court  to  take  cognizance  of  it,  143. 
they  are:  to  the  jurisdiction;  to  the  person,  complainant  or  de- 
fendant; and  to  the  bill,  143. 

(a)  pleas  to  the  jurisdiction,  144. 
nature  of  the  plea,  144. 

three  reasons  from  which  objection  to  jurisdiction  may  arise, 

144. 
that  the  cause  is  not  within  the  equitable  jurisdiction,  144. 
that  the  parties  have  no  right  to  litigate  in  the  particular 

court,  144. 
that  they  have  no  right  to  litigate  in  the  court  where  the 

bill  is  filed  because  of  another  suit  pending  in  the  same 

or  another  court,  144. 

(b)  pleas  to  the  person,  145. 

(1)  to  the  party  complainant,  145. 

when  the  plea  as  to  party  complainant  may  be  invoked, 
145. 

(2)  when  plea  to  party  defendant  may  be  invoked,  145. 

(c)  pleas  to  the  bill,  146. 

does  not  question  jurisdiction,  or  parties  complainant,  or  lia- 
bility of  defendant,  146. 
contends  that  particular  bill  canot  sustain  a  decree,  146. 
when  another  suit  pending  in  equity  court,  146. 
when  bill  is  defective  for  want  of  parties,  146. 
that  bill  is  based  on  only  a  portion  of  subject-matter,  146. 
that  the  bill  is  multifarious,  146. 
allegations  of  a  plea  of  another  suit  pending,  146. 
plea  of  another  suit  pending  in  court  of  law  unavailing  in 

equity,  146. 
the  doctrine  questioned  and  discussed,  146. 
if  want  of  parties  ai^^ears  on  face  of  bill,  may  demur,  146. 
if  does  not  appear  on  face  of  bill,  but  is  a  fact,  may  plead,  146. 
bill. must  involve  whole  subject-matter  of  the  controversy,  146. 
if  it  does  not,  a  plea  based  upon  that  fact  will  prevail,  146. 
when  a  demurrer  may  be  filed  in  such  case,  146. 
when  a  plea  for  multifariousness  may  be  interposed,  146. 
pleas  in  bar,  147. 

nature  and  definition  of^  147. 
averments  in,  147. 
pleas  in  bar  are  of  three  kinds,  148. 
pleas  founded  upon  some  bar  created  by  statute,  149. 
are  divided  into  pleas  of  statute  of  limitations,  149. 
pleas  of  the  statute  of  frauds,  149. 
founded  upon  any  statute  private  or  public,  149. 
pleas  of  the  statute  of  limitations,  150. 
when  the  defense  available,  150. 


&it>  INDEX. 

References  are  to  sections. 

PLEAS  IN  EQUITY   (continued)  — 
laches  as  a  defense,  151. 

relation  of  to  statute  of  limitations,  16L 
wlien  the  defense  available,  151. 
where  the  case  falls  within  the  exceptions  to  the  statute,  or  there  is 
reasonable  excuse  for  the  delay,  152. 
when  the  exception  obtains,  152. 
statute  of  limitations  in  cases  of  trust,  153. 

under  what  circumstances  the  statute  may  be  pleaded,  153. 
not  a  defense  when  debt  due  trustee  for  cestui  que  trust,  153. 
or  where  debtor  knew  fund  was  trust  fund  and  borrowed  it  in 

violation  of  trust,  153. 
no  adverse  claim  between  trustee  and  cestui  que  trust  during 
continuance  of  relation,  153. 
constructive  trust,  154. 

when  may  be  pleaded  and  nature  of  plea,  154. 
pleas  of  the  statute  of  frauds,  155. 

when  may  be  invoked  by  plea,  155. 
if  depended  upon,  must  be  pleaded,  155. 
pleas  founded  upon  any  statute,  private  or  public,  that  may  be  a 
bar  to  the  action,  156. 
when  may  be  interposed  and  nature  of,  156. 
form  of  pleading  the  several  statutes,  157. 

only  necessary  to  state  in  concise  and  unmistakable  terms  facts 

bringing  case  within  the  statute,  157. 
not  necessary  to  set  out  the  statute  in  the  plea,  157. 
if  special  statute,  reference  should  be  made  to  it,  157. 
pleas  in  bar  founded  upon  some  matters  of  record,  158. 
when  may  be  interposed,  158. 

when  matter  has  been  determined  in  court  of  record  by  judg- 
ment or  decree,  158. 
if  bill  has  been  dismissed  without  prejudice,  not  a  bar  to  an- 
other action,  158. 
where  the  bill  alleges  fraud  in  obtaining  former  decree  or  judgment, 
159. 
nature  of  plea  of  former  judgment  or  decree  in  such  case,  159. 
judgments  or  decrees,  foreign  or  domestic,  legal  or  equitable,  160. 

when  may  be  pleaded  in  bar,  160. 
pleas  founded  on  matter  in  pais,  161. 

what  is  meant  by  matter  in  pais.  161. 
pleas  founded  on,  have  been  classified,  161. 

(1)  a  plea  founded  upon  a  release,  162. 

may  plead  release  of  claim  sought  to  be  enforced,  162. 
when  release  anticipated  in  bill,  plea  must  meet  and  deny  alle- 
gations, 162. 

(2)  pleas  founded  upon  stated  account,  163. 

the  nature  of  the  plea  and  when  it  may  be  interposed,  163. 
substance  of  the  plea  of  account  stated,  164. 
some  requisites  to  such  a  plea.  164. 


ixDEx.  847 

Eeferencjes  are  to  sections. 

PLEAS  m  EQUITY  (continued)— 

(3)  plea  of  a  setiled  account,  165. 

the  nature  of,  and  when  it  may  be  interposed,  165. 

receipt  obtained  by  fraud  or  mistake  no  bar  to  bill  for  an  ac- 
counting, 165. 

when  bill  contains  such  allegations,  plea  must  be  supported  by 
answer  denying  them,  165. 

(4)  plea  of  an  award,  166. 

when  the  plea  may  be  properly  invoked,  166. 
mere  agreement  to  arbitrate  cannot  be  pleaded  in  bar,  166. 
must  be  complete  legal  submission  of  controversy,  166. 
if  pleadings  fraudulent,  or  arbitrators  corrupt,  or  decision  in- 
duced by  mistake,  may  be  pleaded,  166. 
may  meet  award  by  plea  of  fraud,  corruption,  or  mistake,  166. 

(5)  plea  of  purchase  for  a  valtiable  consideration  without  notice  of 

equities,  167. 
when  such  a  plea  is  available — the  several  questions  involved — 

who  are  horia  fide  purchasers.  167. 
persons  affected  by  notice  may  have  the  benefit  of  the  want  of 

notice  to  intermediate  parties,  168. 
the  plea  in  such  a  case,  168. 

(6)  a  plea  of  title  in  the  defendant,  169. 

cases   in  which  this   plea  is   applicable   grouped   under  three 
heads,  169. 
where  the  defendant's  title  is  founded  upon  a  will,  169. 
where  founded  upon  a  conveyance,  169. 
on  a  long  peaceable  possession  of  property,  169. 
plea  of  adverse  possession,  169. 
pleas  to  the  discovery  sought,  170. 
the  nature  of  the  plea,  170. 

plea  proper  when  defendant  should  be  excused  from  discovery, 
170. 
should  set  out  facts  showing  legal  excuse,  170. 
the  several  grounds  of  pleas  to  discovery,  171. 

to  the  jurisdiction;  to  the  person;  to  the  bill  or  frame  of  the 

bill;  in  bar,  171. 
several  classes  considered,  171. 
the  frame  of  the  plea,  172. 

requisite  allegations  in  the  plea.  172. 
when  the  plea  must  be  supported  by  answer,  173. 

cases  requiring,  stated  and  discussed,  173. 
the  answer  in  support  of  the  plea  no  part  of  the  defense,  174. 
nature  and  effect  of  the  answer,  174. 

court  will  intend  all  matters  charged  in  bill  demanding  answer, 
and  not  fully  answered,  against  the  pleader,  174. 
the  form  of  a  plea.  175. 

form  with  subdivisions  noted,  175. 


848  INDEX. 

BefereBces  are  to  sections. 

PLEAS  IN  EQUITY   (continued)  — 
the  plaintiff's  reply,  176. 

plea  may  be  met  in  two  ways,  176. 

(1)  may  admit  facts  set  up  in,  and  deny  sufficiency,  176. 

(2)  admitting  sufficiency,  by  replication  may  deny  the  facts 
set  up,  176. 

replication  tenders  an  issue  of  fact,  176. 

failing  to  file  admits  the  facts  of  the  plea,  176. 
plaintiff  may  amend  his  bill  after  plea,  177. 

manner  of  obtaining  amendment,  177. 
withdrawal  of  plea,  178. 

the  practice  as  to  withdrawing  plea,  178. 

whcu  it  may  be  withdrawn,  178. 
the  hearing  of  the  issue  made  by  bill  and  plea,  179. 

how  the  hearing  brought  on,  179. 

how  conducted,  179. 

when  no  replication,  179. 

when  plaintiff  replies,  179 
the  determination  or  decree  of  the  court  upon  the  hearing,  180. 

what  the  court  determines  upon  the  hearing,  180. 

when  plea  held  to  stand  for  an  answer,  180. 

when  plea  dismissed,  effect  of,  180. 

PLEAS  TO  THE  BILL  (see  Pleas  in  Equity;  Pleas  in  Abatement)  — 

(1)  that  there  is  another  suit  pending,  146. 
nature  of  plea  and  when  proper,  146. 

(2)  that  bill  is  defective  for  want  of  proper  parties,  146. 
if  appears  on  face  of  bill,  subject  to  demurrer,  146. 

(3)  that  bill  based  on  only  portion  of  subject-matter  in  controversy, 
146. 

(4)  that  bill  is  multifarious,  146. 

PLEAS  TO  THE  JURISDICTION    (see  Pleas  in  Equity,  144;    Juris- 
diction OF  Equity  Exercised,  when)  — 
when  advantage  for  want  of  jurisdiction  should  be  taken,  144. 
when  may  be  taken  at  hearing,  144. 
objection  that  court  has  no  jurisdiction  may  arise,  14^. 

(1)  that  cause  set  up  in  biU  is  not  within  equitable  jurisdic- 
tion. 146. 

(2)  that  parties  cannot  litigate  in  the  particular  court,  146. 

(3)  that  cannot  litigate  because  another  suit  pending,  146. 

PLEAS  TO  THE  PERSON— 

(1)  to  the  party  complainant,  145. 
foundation  of  plea,  145. 
reasons  for  filing,  145. 

(2)  to  the  party  defendant,  145. 
when  it  may  be  interposed,  145. 

see  Pleas  in  Equity. 


INDEX.  oj^Q 

References  are  to  sectiona. 
PRAYER  FOR  PROCESS— 

asks  for  writ  to  compel  appearance,  47. 

usual  writ  prayed  for  is  subpoena,  47. 

history  of  the  writ,  and  its  adoption  by  chancery  court  47 

must  name  the  defendants  to  be  served  with  process  47 

persons  not  named  in,  not  considered  as  parties   47  '      ' 

bill  not  demurrable  which  has  no  prayer,  when  47  ' 

"  '''Tz:s::^:T  °' ''°'"'  '^  ^-^-^  '"•  "--^  ^-- 

see  Several  Bills  in  Eqijitt. 
PRAYER  FOR  RELIEF— 

may  be  special  or  general,  46. 
provisions  as  to  in  United  States  court,  46 
general  prayer  may  be  added  by  amendment.  46 
form  of,  46. 

stating  part  of  bill  governs,  46. 
importance  of  general  prayer,  46. 
should  pray  for  injunction,  if  sought,  46 

that  sought  to  be  enjoined  should  be  pariicularly  set  out  in  46 
PREMISES  OR  STATING  PART  OP  BILI^  '      ' 

a  formal  part  of  bill  in  equity,  31.    See  Bill  in  Equitt 
in  this  part  must  state  essentials  of  case   31 
requirements  as  to  positiveness  and  certainty   31 
must  show  plaintiff  entitled  to  relief  prayed  for  31 
every  essential  fact  must  be  distinctly  and  expr'essiy  averred   31 
not  to  state  the  evidence  but  the  essentials  of  case  l^^^'''^^'  ^^^ 
the  importance  of  this  part  of  bill.  31. 
plaintiff  must  state  his  whole  case,  32. 
not  permitted  to  divide  the  action,  32 
such  practice  would  permit  mulitiplicity  of  suits  32 

'""^^fulirrr32."  ^"^""  "^  ^^"^^  --  -^  —  --t  be 
there  must  be  a  subject  of  the  litigation  shown,  32 
what  it  may  be,  32. 

the  bill  must  here  show  title  in  the  complainant,  32 

the  strictness  required,  32. 

Erif.Vr  TT  '"^'''''''  '^''''  ''  "^^^^  ^°^  *°  possession.  32. 
English  and  American  rule,  32 

interest  must  be  shown  to  be  real  and  valuable,  32. 

failure  to  show  interest  renders  bill  demurrable  32 

capacity  in  which  plaintiff  sues  must  appear  32' 

must  state  the  wrong  and  injury  to  complainant,  32 

ir  It  does  not  appear  bill  demurrable  32 

failure  to  do  this  renders  the  bill  demurrable.  33 
rorm  and  manner  of  statement,  34. 
how  facts  must  be  stated,  34. 
:  -»  54 


850  INDEX. 

References  are  to  sections. 

PREMISES  OR  STATING  PART  OF  BILL   (continued)  — 
setting  up  deeds,  mortgages,  contracts,  records,  etc.,  35. 

not  necessary  to  set  out  in  hwc  verba,  35. 

what  sufficient  statement  of,  35. 
when  must  tender  of  performance  be  made,  36. 

as  to  actual  performance  of  conditions  precedent,  36. 
tender  of  performance  in  the  bill,  36. 
allegations  of  fraud,  38. 

cannot  be  alleged  by  mere  statement  of  conclusions,  38. 

must  set  out  facts  and  circumstances  constituting  fraud,  38. 

so  clearly  that  court  could  make  a  decree,  38. 

so  fully  that  defendant  can  meet  it  by  denying  facts  stated,  38. 
the  bill  must  not  be  multifarious,  39. 

is  if  contains  two  or  more  different  and  distinct  objects,  39. 

may  have  distinct  and  different  subjects,  39. 
the  bill  may  be  framed  with  double  aspect,  40. 

what  is  meant  by  this,  40. 

nature  and  extent  of,  40. 
scandal  and  impertinence,  41. 

what  constitutes — effect  of,  41. 

when  scandalous  matter  may  be  stated,  41. 

may  state  pertinent  facts  of  case  even  though  damaging  to  rep* 
utation,  41. 

PRESUMPTIONS  (see  Judicial  Notice)  — 

party  need  not  prove  in  first  instance  facts  presumed,  302. 
burden  of  disproving  presumption  on  party  having  negative,  302. 
even  though  it  calls  for  proving  a  negative,  302. 
sanity  presumed — need  not  prove,  302. 

legitimacy  of  issue  presumed  if  legal  marriage  proved,  302. 
good  faith  between  parties,  302. 
fair  dealing  and  honesty,  302. 

when  transaction  susceptible  of  two  interpretations,  302. 
all  men  know  the  law,  302. 
see  Evidence. 

PROCESS,  SERVICE  OF— 

chancery  subpoena — origin  of,  73. 
general  use  of,  74. 

form  of  the  writ — its  general  use,  74. 

how  addressed — form  of,  75. 

service  of,  76. 

upon  infant  defendant,  76. 

infant  appears  by  guardian,  77. 

service  on  lunatics,  78. 

on  prisoners,  79. 

married  women,  80. 

corporations,  81. 

on  state,  82. 

by  whom  served,  83. 


INDEX. 


References  are  to  sections. 


861 


PROCESS,  SERVICE  OF  (continued)  — 
substituted  service,  84. 

service  when  defendant  without  the  jurisdiction,  85. 
order  for  publication — proof  of,  etc.,  85. 
judgment  on  such  service — validity  of,  86. 
service  by  order  for  publication  in  divorce  cases,  87. 
theory  for  allowing  such  service — action  in  rem,  87. 
PRO  CONFESSO— PROCEEDINGS  TO  A  DECREE— 

formerly  no  power  to  proceed  to  decree  without  appearance,  97. 

brought  defendant  in  by  writ  of  subpoena,  97. 

arrested  defendant  for  contempt  if  failed  to  appear,  97. 

history  of  early  practice,  97. 

sequestration  of  property  sometimes  result,  97. 

bill  taken  pro  confesso — statutory,  98. 

entering  of  default  and  proceeding  to  decree,  98. 

practice  in  United  States  court,  98. 

some  requisites  to  obtaining  order,  98 

must  appear  defendant  duly  served,  98. 

may  be  personal  or  constructive  service,  98. 

that  being  served  defendant  failed  to  appear,  98. 

how  the  facts  may  be  shown,  98. 

order  must  be  regularly  entered,  98. 

some  forms  given  in  notes,  98. 

default  for  failure  to  demur,  plead  or  answer,  99. 

having  appeared,  failure  to  demur,  plead  or  answer,  99. 
the  practice  and  procedure,  99. 
appearance  entitles  defendant  to  notice  of  all  subsequent  proceed- 

ings,  100. 
admissions  of  fact  by  defendant's  default,  101. 
rule  in  United  States  court  as  to.  101. 
if  answer  required,  as  where  bill  for  discovery,  101. 
if  answer  may  be  compelled — how,  101. 
if  defendant  is  an  infant,  102. 
amending  bill  after  default,  103. 
opening  or  setting  aside  default,  104. 
when  decree  pro  confesso  has  been  taken,  105. 
court  will  not  so  readily  open  and  set  aside  default  after  decree, 
105. 
QUIET  TITLE— BILLS  TO,  425,  426,  427. 
see  Bills  to  Remove  Cloud  from  Title. 

RECEIVERS,  383-397. 

nature  and  office  of  in  equity  suits,  383. 

are  appointed  to  assist  the  court  in  carrying  out  Its  orders,  383. 
to  collect  funds  and  prevent  fraudulent  and  wasteful  expend- 
iture, 383. 
to  prevent  waste,  injury,  and  destruction  of  property,  383. 
called  the  hand  of  the  court,  383. 
remedy  a  harsh  one,  383. 


852  INDEX. 

References  are  to  sections. 

RECEIVERS   (continued)  — 

a  definition  and  some  requisites,  384. 

receiver  should  be  an  indifferent  person  between  the  parties, 

384. 
appointed  when  unjust  and  inequitable  that  either  party  should 

have  possession  and  control,  384. 
acts  for  the  court  and  should  be  unbiased,  384. 
can  be  no  receiver  before  suit  commenced  or  after  terminated, 
384. 
Jurisdiction  to  appoint,  385. 

equity  court  only  court  having  jurisdiction  to  appoint,  385. 
unless  provided  especially  by  statute,  384. 
must  be  in  pending  suit,  384-386. 

property  placed  in  hands  of,  must  be  owned  or  controlled  by 

party  to  suit,  386. 
bill  must  show  complainant  entitled  to  relief,  386. 
that  appointment  necessary  to  carry  out  relief  prayed  for,  386. 
that  appointment  is  necessary  to  avoid  irreparable  injury  and 
loss,  386. 
In  what  cases  appointed,  387. 

can  only  be  determined  from  nature  of  case,  387. 
appointment  only  provisional  remedy,  387. 
not  ultimate  object  of  litigation,  387. 
appointment  rests  in  sound  discretion  of  court,  387. 
court  must  proceed  with  caution,  387. 
is  appointed  for  benefit  of  all  parties  to  suit,  387. 
some  special  cases,  388. 
partnership  cases,  388. 

bill  filed  must  seek  a  dissolution  of  partnership — mere  dis- 
agreement between  partners  not  sufficient  reason,  388. 
necessity  of,  on  bill  to  dissolve  partnership,  388. 
excluding  one  partner  from  access  to  books  or  part  in  man- 
agement of  business,  sufficient,  388. 
may  be  appointed  after  dissolution  to  wind  up  concern,  388. 
In  foreclosure  suits,  388. 

when  may  be  invoked  in  foreclosure  suits,  388. 
often  invoked  in  railroad  and  corporation  foreclosures,  388. 
appointed  in  creditors'  suits,  388. 

when  and  under  what  circumstances  In  creditors'  suits,  388. 
cannot  be  maintained  by  mere  general  creditor,  388. 
generally  accompanied  with  issuing  of  writ  of  injunction, 

388. 
appointment  almost  matter  of  course  in  creditors'  suits,  388. 
appointment  of,  over  corporations,  388. 

when  appointment  will  be  made  and  when  refused,  388. 
statutory  provisions  generally  control,  388. 
receivers  over  real  property,  389. 
when  will  be  appointed,  389. 


INDEX.  853 

Raferencea  are  to  sections, 
RECEIVERS   (continued)  — 

court  will  refuse  to  deprive  one  of  his  possession  of,  by  appoint- 
ment, 389. 
must  appear  that  great  loss  will  result  if  not  appointed,  389. 
if  question  one  of  disputed  title,  court  will  not  appoint,  389. 
will  not  appoint  except  when  necessary  to  prevent  fraud,  389. 
or  protect  property  from  injury,  389. 
or  preserve  it  from  destruction,  389, 

plaintifE  must  show  strong  probability  of  prevailing  In  suit,  389. 
and  imminent  danger  to  property,  389. 
or  its  rents  and  profits,  389. 
the  application  for  appointment  of,  390. 

may  be  made  ex  parte,  when  and  how,  390. 

only  In  cases  of  great  emergency,  390. 

which  demand  immediate  action  for  prevention  of  irreparable 

injury,  390. 
or  where  to  defer  it  would  result  in  irreparable  damage,  390. 
exigencies  must  fully  appear  in  the  bill,  390. 
usually  courts  will  demand  notice  to  defendant  of  application, 
390. 
application  usually  by  petition,  390. 
what  petition  should  set  forth,  390. 
should  be  signed  and  verified  by  applicant,  390. 
and  served  with  copies  of  affidavits  relied  upon  attached,  390. 
with  notice  of  hearing  to  opposite  party,  390. 
opposing  the  application,  390. 

defendant  may,  by  counter-affidavits  and  by  filing  sworn  an- 
swer, denying  all  equities  of  the  bill,  390. 
the  effect  of  sworn  answer  denying  equities,  390. 
need  not  be  taken  as  absolutely  true,  390. 
stands  as  any  other  evidence  in  the  cause,  390. 
the  order  on  application  for  appointment,  391. 

by  its   terms   confers   the   power  and   authority   given   to  re- 
ceiver, 391. 
should  describe  the  property  or  assets  to  be  taken  and  con- 
trolled by,  391. 
description  of,  should  be  sufficiently  certain  to  identify  prop- 
erty, 391. 
order  usually  provides  receiver  shall  give  a  bond,  391. 
from  time  of  appointment,  property  in  custodia  legis,  391. 
and  not  subject  to  levy,  execution  or  attachment,  391. 
what  order  usually  recites,  391. 
defendant  required  to  forthwith  turn  over  and  deliver  property 

to  receiver,  391. 
this  includes  books,  vouchers,  papers,  deeds,  contracts,  indebt- 
edness, etc.,  391. 
an  approved  form  of  order,  391. 


854  INDEX. 

Eeferencea  are  to  sections. 

RECEIVERS'    (continued)  — 

the  title  or  right  of  possession  and  control  of  the  receiver,  392. 

talces  all  right,  title  and  interest  defendant  has  at  time  of  aiv 
pointment,  392. 

but  takes  subject  to  legal  claims  or  defenses  against  it,  392. 

as  to  third  parties,  stand  in  same  position  as  defendant,  392. 

is  merely  ministerial  agent  of  the  court,  392. 

must  recognize  exemption  laws,  392. 

some  of  powers  of,  enumerated,  392. 

when  may  continue  a  going  business  and  to  what  extent,  392. 
the  New  York  rule  in  cases  of  creditors'  bills,  393. 

assignment  to  receiver  of  all  property  of  defendant,  393. 

powers,  rights  and  duties  of,  under  the  rule,  393, 
something  of  the  powers,  duties  and  obligations  of  the  receiver,  394. 

duties  of,  entirely  ministerial,  394. 

acts  under  direction  and  guidance  of  court,  394. 

appointment  operates  as  equitable  execution,  394. 

primary  object  of  his  appointment,  394. 

duties  equal  and  alike  to  all,  394. 

some  of  his  powers  enumerated,  394. 

must  constantly  apply  to  the  court  for  advice  and  sanction,  394. 

his  liability  ceases,  when,  394. 
foreign  and  ancillary  receivers,  395. 

as  a  general  rule,  powers  of  co-extensive  with,  jurisdiction  of 
the  appointing  court,  395. 

when  may  act  in  foreign  jurisdiction,  395. 

regulated  by  comity  of  states,  395. 

doctrine  often  invoked  in  railroad  foreclosure  cases,  395. 

where  mortgaged  property  located  in  several  adjoining  states, 
395. 

some  discussion  of  the  doctrine,  395. 
interference  with  receivers,  contempt  of  court,  396. 

receivers  said  to  be  a  part  of  the  court,  396. 

so  interference  with,  interference  with  the  court,  396. 

court  will  protect  its  oflBcers  in  administration  of  duty,  396. 

possession  of  receiver  possession  of  court,  396. 

so  obstruction  to,  obstruction  to  court,  396. 

actual  notice  of  appointment  sufficient,  396. 

formal  notice  not  necessary,  396. 

defendant  may  be  heard  as  to  his  control  and  possession  of 
property,  396. 
procedure  in  cases  for  contempt,  397. 

equity  court  usually  follows  New  York  practice,  397. 

the  procedure  and  practice  in  cases  of  contempt,  397. 
see  Contempt. 

RECORDS  AND  ORDERS— 
what  are,  15. 


INDEX.  855 

References  are  to  sections. 

REDEMPTION— 

equity  of  redemption,  some  history  of,  460. 

see  Mortgages  ob  Pledges,  Actions  for  the  Foreclosure  of, 
460-477;  Bills  to  Redeem,  477-481. 
REFORMING    A    CONTRACT,    DEED    OR    WRITTEN    OBLIGATION, 
417-421. 
when  equity  will  take  jurisdiction,  417. 
the  necessity  of  the  remedy,  417. 
for  mutual  mistakes,  417. 
the  mistake  upon  which  the  remedy  may  be  based,  418. 

ignorance  of  law  with  knowledge  of  facts  no  defense,  418. 

mistake  of  legal  effect  of,  not  sufficient,  418. 

but  ignorance  of  law  of  foreign  country  or  foreign  state  has 

been  held  sufficient,  418. 
when  total  ignorance  of  title  founded  on  mistake  of  law  suffi- 
cient, 418. 
If  mistake  of  one  party  accompanied  by  fraud  of  other  party 

equity  will  reform,  418. 
court  has  wide  discretion  in  this  class  of  cases,  418. 
but  will  not  supply  an  agreement  that  was  never  made,  418. 
will  only  reform  to  express  real  intention  of  parties,  418. 
will  protect  rights  of  bona  fide  purchasers,  when,  418. 
the  procedure — the  bill  of  complaint,  419. 

the  requisites  of  the  bill  of  complaint,  419. 

the  instrument  as  well  as  the  fraud  or  mistake  should  be  set 

out  in  the  bill,  419. 
if  mistake  result  of  fraud  of  defendant,  should  appear  in  the 

bill.  419. 
the  fraud  should  be  carefully  and  fully  stated,  419. 
when  other  matters  than  reformation  may  be  object  of  bill,  419. 
a  bill  for  reformation  and  foreclosure  not  multifarious,  419. 
may  be  to  reform  contract  and  for  specific  performance,  419. 
defenses,  420. 

not  dissimilar  to  other  defenses  in  equity,  420. 

may  be  by  demurrer,  plea  or  answer,  420. 

if  by  bill  it  appears  that  there  has  been  long  continued  laches, 

may  demur,  420. 
cases  where  demurrer  will  be  sustained,  420. 
when  defense  should  be  by  plea,  420. 
when  an  answer  should  be  filed,  420. 

the  proofs,  421. 

presumption  is  that  contract  or  written  instrument  is  valid, 

421. 
burden  of  proof,  of  mistake  or  fraud  upon  the  plaintiff  must  be 
clear  and  positive  and  beyond  rational  doubt,  421. 
REHEARING  OF  EQUITY  CAUSE,  335-340. 

may  be  after  decree  settled  and  entered  but  before  enrolment,  335. 
or  by  rule  and  practice  of  court,  before  has  become  a  record  m 
cause,  335. 


856  INDEX. 

References  are  to  sectlona 

REHEARING  OF  EQUITY  CAUSE    (continued)  — 

this  applies  not  only  to  decrees  granted  upon  final  hearing,  but 
decrees  obtained  upon  demurrer  or  plea,  335. 

and  cases  where  the  order  of  the  court  is  for  further  directions, 
as  execution  of  decree,  335. 

or  on  exceptions  to  report  to  commissioner  or  master,  335. 

is  analogous  to  motion  for  new  trial  in  law  case,  335. 

case  not  subject  to  this  procedure  after  enrolment,  335. 

court  has  control  of  its  own  judgments  before  enrolment,  335. 
practice  and  reasons  for  granting  rehearing,  336. 

usually  presented  to  court  by  petition,  336. 

defendant  may  answer  petition,  336. 

when  grounds  of  petition  newly-discovered  evidence,  336. 

what  the  petition  should  contain,  336. 

when  petition  upon  ground  of  error  of  law,  336. 
rehearing  where  decree  taken  pro  confesso  and  permitting  defense, 
337. 

proceeding  generally  limited  to  decrees  not  enrolled,  337. 

generally  rest  in  sound  discretion  of  court,  337. 

usually  allowed  where  there  was  irregularity  in  the  proceed- 
ings and  it  would  be  unjust  to  permit  it  to  stand,  337. 

or  upon  showing  of  surprise,  mistake  or  accident,  337. 

or  that  interests  of  strangers  to  record  have  not  been  protected, 
337. 

federal  court  practice  fixed  by  rule,  337. 

pro  confesso  decree  in,  when  final  and  beyond  power  of  court, 
337. 
party  moving  to   reopen  or  for  rehearing  must  not  be  guilty  of 
laches.  338. 

this  applies  as  well  to  pro  confesso  decrees,  338. 
form  and  requisites  of  application,  339. 

filing  and  serving  same  and  answer  thereto,  339. 

petition  must  set  forth  with  certainty  reasons  for  granting,  339. 

generally  should  not  be  on  information  and  belief,  339. 

if  so  alleged,  should  be  supported  by  aflBdavits  of  others,  339. 
for  error  of  law  grounds  of  petition  must  be  apparent  upon  the 
record.  339. 

and  arising  on  questions  not  argued  at  final  hearing,  339. 
newly-discovered  evidence,  when  grour^ds  for  petition,  339. 

petition  must  show  evidence  not  cumulative,  339. 

of  such  a  nature  that,  if  it  had  been  presented,  it  would  have 
changed  result.  339. 

that  it  was  not  known  to  exist  before  the  hearing,  339. 

that  with  reasonable  diligence  petitioner  could  not  have  dis- 
covered it.  339. 

must  state  nature  of  newly-discovered  evidence,  339. 

as  to  attaching  affidavits  of  witnesses  expected  to  furnish  proof, 
to  petition,  339. 

should  allege  decree  inequitable  and  injurious  to  petitioner,  339. 


INDEX.  857 

References  are  to  sections. 
REHEARING  OP  EQUITY  CAUSE   (continued)  — 

petition  should  be  signed  and  sworn  to  by  petitioner,  339. 

filed  with  clerk  and  served  with  copies  of  affidavits  to  opposite 
solicitor,  339. 
answer  to  petition  by  opposite  party,  339. 

may  traverse  or  confess  and  avoid,  339. 

when  order  to  show  cause,  339. 

United  States  court  rule  as  to  petition,  339. 
the  hearing  of  petition,  340. 

how  petition  for  rehearing  brought  on  for  hearing,  339,  340. 

as  to  the  proofs  adduced  at  hearing,  340. 

generally  by  affidavits  or  records  referred  to,  340. 

court  may  order  witnesses  for  oral  examination  brought  in,  340. 

petitioner  has  affirmative  at  the  hearing,  340. 

the  opening  and  closing  of  proofs  and  argument,  340. 

the  consequences  of  allowing  rehearing,  340. 

REMEDIES  IN  EQUITY,  1,  2,  366-368. 
remedies  legal  and  equitable,  1. 

equitable  remedies— history  of,  2. 
classification  of  equitable  remedies,  362. 
statutory  actions,  368. 

REPLICATION,  237. 
nature  of,  237. 

two  kinds— formerly,  general  and  special,  237. 

special  replication  out  of  use,  237. 
when  complainant  should  file,  238. 

effect  of  filing.  238. 
waives  the  right  to  except,  when,  239. 
time  for  filing,  240. 
form  of  general  replication,  241. 
waiver  of  replication,  242. 
plaintiff's  reply  to  plea,  176. 

necessity  and  effect  of,  176. 

RESCISSION,  CANCELLATION,  SURRENDER,  OR  DISCHARGE  OP 

INSTRUMENTS,  422,  428. 
the  equitable  jurisdiction  in  cases  of,  422. 
the  reason  for  taking  jurisdiction,  422. 

jurisdiction  rests  fundamentally  upon  grounds  of  fraud,  acci- 
dent or  mistake,  422. 
fraud  in  the  procurement  of  the  instrument  or  failure  of  con- 
sideration, 422. 

accident,  when  equitable  advantage  on  account  of,  obtained, 

422. 
mistake  or  misconduct  of  parties,  422. 
"or  undue  or  inequitable  advantage,  422. 
rescission,  cancellation,  surrender  or  discharge  may  be  brought 

in  one  procedure  or  bill,  422. 
objects  should  not  be  inconsistent  with  each  other,  422. 


858  INDEX. 

References  are  to  sections. 

RESCISSION,     CANCELLATION,     SURRENDER     OR     DISCHARGE 
OF   INSTRUMENTS    (continued)  — 
complainant  must  surrender  and  cause  complete  restoration  of 

subject-matter,  422. 
must  offer  to  restore  or  tender  restoration  in  bill  of  complaint, 

422. 
if  complete  and  adequate  remedy  at  law,  equity  will  not  as- 
sume jurisdiction,  422. 
some  cases  in  which  the  remedies  are  applicable,  423. 

as  where  complainant  non  compos  mentis  and  incapable  of  con- 
tracting, 423. 
to  cancel  insurance  policy  obtained  through  fraud,  423. 
to  remove  cloud  from  title,  423. 
the  cancellation  of  promissory  notes,  423. 
the  procedure,  424. 

is  by  bill  in  equity,  following  general  rules  of  pleading,  424. 
bill  must  do  or  offer  to  do  equity,  424. 
complainant  must  not  be  guilty  of  laches,  424. 
defenses  are  by  demurrer,  plea  or  answer,  424. 
to  remove  cloud  from  title — nature  of  remedy,  425. 

nature  of  the  remedy  and  cases  in  which  it  may  be  invoked,  425. 
adequate  remedy  at  law,  426. 
possession  by  the  plaintiff,  427. 

some  discussion  and  changes  noted  in  procedure,  427. 
the  pleadings,  428. 

necessary  allegations  in  the  bill,  428. 

the  prayer  of  the  bill.  428. 

the  defense — nature  and  kind  of,  428. 

REVIVOR— BILLS  OF,  271-281. 
not  original,  25. 
demurrer  to.  127. 
nature  of  the  bill  of  revivor,  271. 

when  abatement  of  action,  271. 

death  of  party  usual  cause,  271. 
Interest  necessary  to  support  the  bill,  272. 
parties  to  the  bill  of,  273. 
parties  defendant  to  bill.  274. 
original  bill  in  the  nature  of  bill  of  revivor,  275. 

the  nature  and  use  of  such  bill,  275. 

privity  of  estate  and  privity  of  title  distinguished,  275. 
when  a  defendant  can  sustain  a  bill  of  revivor,  276. 
form  of  the  bill,  277. 

distinction  between  bill  of  revivor  and  bill  in  nature  of  bill  of  re- 
vivor, 278. 
form  of  such  a  bill,  279. 
bill  of  revivor  and  supplement,  280. 

nature  of  such  bills — when  used,  280. 
defense  to  bill  of  revivor — as  in  equity  cases  generally,  281. 


INDEX.  859 

References  are  to  sections. 

REVIVOR— BILLS  OF   (continued)— 

demurrer,  plea,  answer — when  properly  employed,  281. 
the  replication,  281. 
the  hearing,  281. 

REVIEW,  BILL  OF  (see  Bills  of  Review  and  in  the  Natxjee  of  Bills 
OF  Review  ) . 

SCANDAL  AND  IMPERTINENCE,  41. 

when  statements  so  considered — when  not,  41. 
immaterial,  redundant  allegations  stricken  out  as,  4L 
one  of  the  ordinances  of  chancery  court,  41. 
criminal  and  scandalous  matter  as,  41. 
rules  of  United  States  court  forbid,  41. 
when  criminating  personal  charges  permitted,  41. 
fraud  or  criminating  acts  properly  charged  when,  41. 
exceptions  to  answer  for,  202. 
see  Bill  in  Equity. 

SECURITIES— MARSHALING  OF,  482-485. 
see  Marshaling  Secueities. 

SEQUESTRATION— 

formerly  resorted  to  to  compel  appearance,  74. 
history  of  early  practice,  97. 

see  Pro  Confesso — Proceedings  to  a  Decree;   Contempt;  At- 
tachment. 

SERVICE  OF  DEFENDANT,  73-96. 

see  Process — Service  of;  Appearance  of  Defendant,  88. 

SIGNING  THE  EQUITY  BILL,  67. 

SPECIFIC  PERFORMANCE  OF  CONTRACTS,  429-436. 

nature  of  the  remedy  and  when  it  may  be  invoked,  429. 

application  and  extent  of  remedy,  429. 
not  a  matter  of  absolute  right,  but  of  discretion,  430. 
rests  in  sound  discretion  of  the  court,  430. 
does  not  depend  on  mere  pleasure  of  court,  but  controlled  by 

established  doctrines  and  principles,  430. 
must  appear  that  specific  enforcement  will  work  no  hardship  or 
injustice,  430. 
Bome  requisites  to  the  relief,  431. 

must  appear  that  recoverable  damages  at  law  are  inadequate, 

431. 
or  the  impossibility  of  ascertaining  the  damages,  431. 
performance  in  specie  must  be  practical  and  possible,  431. 
will  not  decree  where  contract  upon  homestead  executed  by  hus- 
band but  not  by  wife,  431. 
nor  where  material  part  of  subject-matter  is  wanting,  431. 
other  reasons  for  not  decreeing  performance,  431. 
where  performance  of  contract  to  make  a  will  is  sought,  431. 
in  case  of  oral  agreement  by  receiver  of  railroad  company,  431. 


860  INDEX. 

References  are  to  sections. 

SPECIFIC  PERFORMANCE   OF  CONTRACTS    (continued)  — 

where  agreement  requires  doing  an  act  solely  within  Tolltlon 
of  obligor,  cannot  be  enforced,  431. 

as  where  agreement  to  perform  professional  duties,  431. 

contract  for  partnership,  where  no  part  is  performed,  not  en- 
forceable, 431. 

where  contract  is  unconscionable  or  involves  great  hardship, 
431. 

where  contrary  to  good  morals  or  against  public  policy,  431. 

where  performance  of  contract  is  great  hardship,  but  not  uncon- 
scionable and  not  obtained  by  fraud,  431. 
tender  of  performance,  432. 

equitable  maxim  applicable,  432. 

where  conditions  precedent  to  performance,  432. 

must  allege  and  show  ability  and  willingness  to  perform,  432. 

better  practice  to  make  tender  of  performance,  432. 

when  defendant  has  rendered  tender  unnecessary,  432. 
the  procedure — the  parties,  433. 
procedure  by  bill  of  complaint,  433. 

parties  to  bill  generally  parties  to  contract,  433. 
bill  of  complaint,  434. 

general  requisites  to  the  bill,  434. 

prayer  of  the  bill,  434. 
defenses  to  the  action,  435. 

may  be  by  demurrer,  plea,  or  answer,  435. 

when  the  several  defenses  are  properly  invoked,  435. 
the  decree,  436. 

when  the  court  will  refuse  its  aid,  436. 

when  performance  decreed — nature  and  extent  of,  436. 

when  entire  or  partial  performance  decreed,  436. 

when  performance  refused  or  damages  awarded,  436. 

powers  and  jurisdiction  of  the  court  broad  in  such  cases,  436. 

STATING  PART  OF  BILL    (see   Premises  or  Stating  Part  of  Bill, 
31-41;  Sufficiency). 

STATUTE  OF  FRAUDS  (see  Pleas  in  Equitt,  155)  — 

when  may  take  advantage  because  of,  by  demurrer,  155. 
when  by  plea,  155. 
form  of  pleading,  157. 

STATUTES  OF  LIMITATIONS  (see  Pleas  in  Equity,  150)  — 

when  may  be  pleaded,  150. 

laches  as  a  defense,  151. 

relation  of  to  statute  of  limitations,  151. 

exceptions — reasonable  excuse  for  delay,  152. 

statute  of  limitations  in  trust  cases,  153. 

when  demurrer  on  account  of,  150. 
SUBROGATION,  445-452. 

see  Contribution,  Exoneration  and  Surrogation. 
SUBSTITUTED  SERVICE    (see  Process,   Service  of) 


INDEX.  861 

References  are  to  sections. 

SUFFICIENCY  (see  Premises  ob  Stating  Part  of  Bnx,  31-41)— 
certainty  required  not  so  strict  as  at  common  law,  26. 
allegations  should  be  logical  and  certain,  26. 
some  cases  require  same  degree  as  at  law,  26. 
certainty  to  common  intent  generally  enough,  26. 
matters  court  will  take  judicial  knowledge  of,  26. 
these  need  not  be  alleged  in  bill,  26. 

the  subject  of  the  litigation  must  be  alleged  with  certainty,  33. 
title  in  complainant  must  be  shown  by  certain  allegations,  33. 
the  wrong  and  injury  must  be  shown  with  certainty,  33. 
defendant's  claim  and  liability  for  wrong  and  injury  alleged  with 
certainty,  33. 

sufficient  facts  must  be  certainly  alleged  to  support  plaintiff's  case, 
32,  33,  34. 

SUPPLEMENTAL  BILLS— BILLS  NOT  ORIGINAL,  25. 
may  demur  to,  127,  267. 

see  Supplemental  Pleadings. 
SUPPLEMENTAL  PLEADINGS,  260-270. 
the  office  and  nature  of,  260. 

as  to  facts  occurring  since  original  pleadings,  260. 
leave  of  court  must  be  obtained  to  file,  261. 

petition  should  contain,  261. 
granting  leave  to  file,  in  discretion  of  court,  262. 
abuse  of  discretion  grounds  for  appeal,  262. 
limitations  to  use  of  the  bill,  263. 
when  facts  inconsistent  and  foreign  to  original  bill,  263. 

when  new  and  substantive  case  made  by  facts  alleged,  263. 
parties  to  the  bill,  264. 

generally  parties  to  original  bill  should  be,  264. 
may  introduce  new  parties,  264. 
substance  and  frame  of  supplemental  bill,  265. 

formerly  must  fully  recite  original  bill  and  proceedings,  265. 
need  not  recite  in  full — substance  enough,  265. 
must  follow  the  order,  granting  leave  to  file,  265. 
proceedings  on  filing  bill,  266. 
defenses  to,  are  the  usual  defenses  in  equity,  267. 
original  bills  in  the  nature  of  a  supplemental  bill,  268. 
supplemental  answer,  269. 

new  matter  of  defense  occurring  since  answer  filed,  269. 
leave  of  court  to  file  must  be  obtained,  270. 
application  for,  must  show,  270. 
TENDER— 
in  bill,  36. 

see  Specific  Performance  of  Contracts,  432. 
TESTIMONY  (see  Evidence,  297-304). 

TITLE  OR  INTEREST— OF  COMPLAINANT— OF  DEFENDANT  (see 
Premises  or  Stating  Part  of  Bill,  31-34;  Sufficiency;  Certainty  as 
TO  Allegation). 


862  INDEX. 

References  are  to  sectloiifl. 

TRESPASS— 

equity  will  not  enjoin — general  rule,  399. 
exceptions  to  general  rule,  399. 
when  equity  will  enjoin,  399. 

TRUSTEES— CESTUI  QUE  TRUST— 
as  parties  in  equity,  64. 
statute  of  limitation  as  to,  153. 
statute  of  limitation  does  not  run  between,  153. 
other  cases  when  not  a  bar,  153. 
TRUSTS— DECLARATION  AND  ENFORCEMENT  OF  AND   OBLIGA- 
TIONS ARISING  FROM  FIDUCIARY  RELATIONS,   437-444. 
trusts — nature  of  and  definition,  437. 

the  oflBce  and  extent  of  equitable  actions  relative  to,  437. 

equity  does  not  create  but  defines,  determines,  and  enforces,  437. 
equity  will  follow  property  wherever  it  may  be,  437. 
persons  receiving  it  charged  with  execution  of  trust,  437. 
creation  or  declaration  of  trusts,  438. 

how  divided,  438. 

nature  and  general  discussion  of,  438. 
equitable  remedies — procedure,  439. 

nature  of  remedy,  439. 
equity  will  follow  the  trust  property,  440. 

property  once  impressed  with  trust  becomes  special  object  of 
equity  court,  440. 

court  will  follow  it  and  appropriate  it  to  uses  of  trust,  440. 

exception  when  property  conies  to  hona  fide  purchaser,  440. 
pleadings  and  procedure  in  enforcement  of  trusts,  441. 

who  may  maintain  action  and  enforce  trust,  441. 

when  cestui  que  trust  may  bring  action  in  his  own  name,  441. 

who  are  necessary  parties,  441. 
the  bill  of  complaint,  442. 

what  the  bill  must  show — allegations  of,  442. 

who  should  be  made  parties,  442. 

description  of  property,  442. 

alleging  the  existence  of  the  trust,  442. 

not  sufficient  to  state  conclusion,  442. 

prayer  for  relief,  442. 
the  defenses,  443. 

by  demurrer,  plea,  or  answer,  443. 

when  several  defenses  are  proper,  443. 

defense  that  defendant  is  bona  fide  purchaser  may  be  raised  by 
plea  supported  by  the  answer,  443. 
the  decree,  444. 

the  extent  and  nature  of,  444. 
VERIFICATION  OF  THE  EQUITY  BILL,  68.. 

when  required  and  reason  for,  68. 
WRITS  OF  ATTACHMENT   (see  Attachment). 
WRITS  OF  EXECUTION  (see  Execl'tions,  Writs  of). 


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